State v. Burke

[Cite as State v. Burke, 

.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                HENRY COUNTY


STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 7-19-09

        v.

RANDY BURKE,                                              OPINION

       DEFENDANT-APPELLANT.


STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 7-19-10

        v.

RANDY BURKE,                                              OPINION

       DEFENDANT-APPELLANT.


                 Appeals from Henry County Common Pleas Court
                    Trial Court Nos. 18CR0152 and 19CR0096

                                     Judgments Affirmed

                             Date of Decision: October 5, 2020


APPEARANCES:

        Donald Gallick for Appellant

        Gwen Howe-Gebers for Appellee
Case Nos. 7-19-09, 7-19-10


PRESTON, J.

        {¶1} Defendant-appellant, Randy Burke (“Burke”), appeals the September 5,

2019 judgments of sentence of the Henry County Court of Common Pleas. For the

reasons that follow, we affirm.

        {¶2} This case arises from the allegations by multiple females that Burke,

their former high school cross country and track coach, inappropriately touched

them. (Case No. 18CR0152, Doc. No. 76). On November 28, 2018, the Henry

County Grand Jury indicted Burke on ten counts, involving four alleged victims, in

Case Number 18CR0152: Counts One, Two, Four, Five, Eight, and Ten of gross

sexual imposition in violation of R.C. 2907.05(A)(1), fourth-degree felonies, and

Counts Three, Six, Seven, and Nine of sexual imposition in violation of R.C.

2907.06(A)(1), third-degree misdemeanors. (Case No. 18CR0152, Doc. No. 1).1

On December 11, 2018, Burke appeared for arraignment and entered pleas of not

guilty to the counts in the indictment. (Case No. 18CR0152, Doc. No. 20).

        {¶3} On June 26, 2019, the Henry County Grand Jury indicted Burke on two

counts, involving one alleged victim, in Case Number 19CR0096: Count One of

gross sexual imposition in violation of R.C. 2907.05(A)(1), a fourth-degree felony,




1
  Upon the motion of the State, the trial court made several minor amendments to the indictment, concerning
only the date that the alleged contact occurred. (Case No.18CR0152, Doc. Nos. 6, 7, 59, 61, 70, 71).
However, the amendments do not affect Count One, which is the sole count of the indictment being argued
on appeal. (Case No. 18CR0152, Doc. Nos. 6, 7, 59, 61, 70, 71); (Appellant’s Brief at 9-16). Accordingly,
the amendments will not be discussed further.

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Case Nos. 7-19-09, 7-19-10


and Count Two of sexual imposition in violation of R.C. 2907.06(A)(1), a third-

degree misdemeanor. (Case No. 19CR0096, Doc. No. 1). On July 15, 2019, Burke

appeared for arraignment and entered pleas of not guilty to the counts in the

indictment in Case Number 19CR0096. (Case No. 19CR0096, Doc. No. 10). On

July 10, 2019, the State filed a motion for the trial court to consolidate case numbers

18CR0152 and 19CR0096 for the purpose of trial, which the trial court subsequently

granted. (Case No. 18CR0152, Doc. No. 40); (Case No. 19CR0096, Doc. Nos. 9,

13).

       {¶4} The cases proceeded to a jury trial on August 5-8, 2019. (Case No.

18CR0152, Doc. No. 89); (Case No. 19CR0096, Doc. No. 43). At the close of the

State’s case, Burke made a motion for acquittal under Crim.R.29, which the trial

court denied. (Aug. 5-8, 2019 Tr. at 363-366). On August 8, 2019, the jury returned

its verdict. (Case No. 18CR0152, Doc. No. 89); (Case No. 19CR0096, Doc. No.

43). With respect to Case Number 18CR0152, the jury found Burke guilty of

Counts One and Three and not guilty of the remaining counts.               (Case No.

18CR0152, Doc. Nos. 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 89). With respect to

Case Number 19CR0096, the jury found Burke guilty of Count Two and not guilty

of Count One. (Case No. 19CR0096, Doc. Nos. 40, 41, 43). On August 27, 2019,

the trial court filed its judgment entries of conviction. (Case No. 18CR0152, Doc.

No. 89); (Case No. 19CR0096, Doc. No. 43).


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Case Nos. 7-19-09, 7-19-10


       {¶5} On September 4, 2019, the trial court sentenced Burke to five years of

community control and 180 days of local incarceration as to Count One of Case

Number 18CR0152, 30 days of local incarceration as to Count Three of Case

Number 18CR0152, and 30 days of local incarceration as to Count Two of Case

Number 19CR0096. (Case No. 18CR0152, Doc. No. 111); (Case No. 19CR0096,

Doc. No. 44). The trial court ordered that the terms of incarceration be served

concurrently. (Id.); (Id.). On September 5, 2019, the trial court filed its judgment

entries of sentence. (Id.); (Id.).

       {¶6} On September 13, 2019, Burke filed his notices of appeal. (Case No.

18CR0152, Doc. No. 114); (Case No. 19CR0096, Doc. No. 46). On September 25,

2019, Case Numbers 18CR0152 and 19CR0096 were consolidated for purpose of

briefing and argument. Burke raises two assignments of error for our review, which

we address together.

                              Assignment of Error No. I

       The trial court erred in denying the Criminal Rule 29 motion on
       Count One of 2018 CR 0152, gross sexual imposition, Ohio
       Revised Code § 2907.05(A)(1), as the element of compulsion was
       not supported by the sufficiency of the evidence and is also against
       the manifest weight of [the] evidence.

                             Assignment of Error No. II

       The trial court erred by overruling the Criminal Rule 29 motion
       as to Count Two in 2019 CR 0096 as the only testimony to meet
       the burden of production came from the prosecutor’s questions
       which inserted facts not testified to on direct examination;

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Case Nos. 7-19-09, 7-19-10


       additionally[,] the conviction is against the manifest weight of the
       evidence.

       {¶7} In his first assignment of error, Burke argues that the trial court erred

by denying his Crim.R. 29 motion with respect to Count One in Case Number

18CR0152 because the State failed to present sufficient evidence with respect to the

element of force. (Appellant’s Brief at 9-15). Burke further argues that his gross

sexual imposition conviction is against the manifest weight of the evidence. (Id. at

15). In his second assignment of error, Burke argues that the trial court erred by

denying his Crim.R. 29 motion with respect to Count Two of Case Number

19CR0096 because the State failed to present sufficient evidence that he engaged in

sexual contact with the alleged victim. (Id. at 16-20). Burke also contends that his

sexual imposition conviction is against the manifest weight of the evidence. (Id. at

16).

       {¶8} Manifest “weight of the evidence and sufficiency of the evidence are

clearly different legal concepts.” State v. Thompkins, 

(1997). Accordingly, we address each legal concept individually.

       {¶9} “An appellate court’s function when reviewing the sufficiency of the

evidence to support a criminal conviction is to examine the evidence admitted at

trial to determine whether such evidence, if believed, would convince the average

mind of the defendant’s guilt beyond a reasonable doubt.” State v. Jenks, 

 (1991), paragraph two of the syllabus, superseded by state constitutional

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Case Nos. 7-19-09, 7-19-10


amendment on other grounds, State v. Smith, 

 (1997).

Consequently, “[t]he relevant inquiry is whether, after viewing the evidence in a

light most favorable to the prosecution, any rational trier of fact could have found

the essential elements of the crime proven beyond a reasonable doubt.” 

 “In

deciding if the evidence was sufficient, we neither resolve evidentiary conflicts nor

assess the credibility of witnesses, as both are functions reserved for the trier of

fact.” State v. Jones, 1st Dist. Hamilton Nos. C-120570 and C-120571, 2013-Ohio-

4775, ¶ 33, citing State v. Williams, 

, 

(1st Dist.). See also State v. Berry, 3d Dist. Defiance No. 4-12-03, 

 (“Sufficiency of the evidence is a test of adequacy rather than credibility or

weight of the evidence.”), citing 

. Because the purpose of a

Crim.R. 29 motion for acquittal “is to test the sufficiency of the evidence presented

at trial,” we “review[ ] a denial of a Crim.R. 29 motion for judgment of acquittal

using the same standard that is used to review a sufficiency of the evidence claim.”

State v. Willis, 12th Dist. Butler No. CA2009-10-270, 

, ¶ 9, citing

State v. Terry, 12th Dist. Fayette No. CA2001-07-012, 

, ¶ 9, citing

State v. Williams, 

 (1996); State v. Lightner, 3d Dist. Hardin

No. 6-08-11, 

, citing State v. Carter, 

(1995).




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Case Nos. 7-19-09, 7-19-10


       {¶10} On the other hand, in determining whether a conviction is against the

manifest weight of the evidence, a reviewing court must examine the entire record,

“‘weigh[ ] the evidence and all reasonable inferences, consider[ ] the credibility of

witnesses and determine[ ] whether in resolving conflicts in the evidence, the [trier

of fact] clearly lost its way and created such a manifest miscarriage of justice that

the conviction must be reversed and a new trial ordered.’” 

,

quoting State v. Martin, 

 (1st Dist.1983). A reviewing

court must, however, allow the trier of fact appropriate discretion on matters relating

to the weight of the evidence and the credibility of the witnesses. State v. DeHass,

 (1967). When applying the manifest weight standard,

“[o]nly in exceptional cases, where the evidence ‘weighs heavily against the

conviction,’ should an appellate court overturn the trial court’s judgment.” State v.

Haller, 3d Dist. Allen No. 1-11-34, 

, quoting State v. Hunter,

, 

.

       {¶11} “Circumstantial evidence and direct evidence inherently possess the

same probative value and therefore should be subjected to the same standard of

proof.” Jenks, 61 Ohio St.3d at paragraph one of the syllabus. “A conviction can

be sustained based on circumstantial evidence alone.” State v. Franklin, 

 (1991). “[I]n some instances, certain facts can only be established

by circumstantial evidence” and a conviction based thereon “is no less sound than


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Case Nos. 7-19-09, 7-19-10


one based on direct evidence.” State v. Smith, 12th Dist. Butler No. CA2008-03-

064, 

, ¶ 80. “If the state ‘relies on circumstantial evidence to prove

an [essential] element of the offense charged, there is no [requirement that the

evidence must be] irreconcilable with any reasonable theory of innocence in order

to support a conviction[,]’ so long as the jury is properly instructed as to the burden

of proof, i.e., beyond a reasonable doubt.” State v. Bates, 6th Dist. Williams No.

WM-12-002, 

, ¶ 50, quoting Jenks at paragraph one of the syllabus.

       {¶12} Burke was convicted of gross sexual imposition in violation of R.C.

2907.05(A)(1) and sexual imposition in violation of R.C. 2907.06(A)(1). The

offense of gross sexual imposition is codified in R.C. 2907.05, which provides, in

relevant part, that “[n]o person shall have sexual contact with another, not the spouse

of the offender … when … [t]he offender purposely compels the other person

… to submit by force or threat of force.” R.C. 2907.05(A)(1) (Jan. 1, 2008)

(current version at R.C. 2907.05(A)(1) (Mar. 22, 2020)). “Sexual contact” is

defined in R.C. 2907.01(B) as meaning “any touching of an erogenous zone of

another, including without limitation the thigh, genitals, buttock, pubic region, or,

if the person is a female, a breast, for the purpose of sexually arousing or gratifying

either person.” “Whether touching is done for the purpose of sexual gratification is

a ‘question of fact to be inferred from the type, nature, and circumstances

surrounding the contact.’” State v. Todd, 3d Dist. Hardin No. 6-16-11, 2017-Ohio-


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Case Nos. 7-19-09, 7-19-10


4355, ¶ 12, quoting In re K.C., 1st Dist. Hamilton No. C-140307, 

,

¶ 32, abrogated on other grounds, State v. Barker, 

, 2016-Ohio-

2708.

        {¶13} “‘Force’ means any violence, compulsion, or constraint physically

exerted by any means upon or against a person or thing.” R.C. 2901.01(A)(1).

“Force or the threat of force ‘can be inferred from the circumstances surrounding

sexual [contact].’” State v. Kaufman, 

, 

(7th Dist.), quoting State v. Schaim, 

 (1992), paragraph one of the

syllabus. A victim is not required to prove physical resistance for the offender to

be found guilty of gross sexual imposition. R.C. 2907.05(D).

        {¶14} “‘Any,’ as used in R.C. 2901.01(A)(1), is an adjective.” State v.

Heiney, 6th Dist. Lucas No. L-16-1042, 

. “‘“As an adjective,

‘any’ is defined as: ‘[o]ne or some, regardless of kind, quantity, or number; an

indeterminate number or amount.’”’” 

 quoting State v. Euton, 3d Dist. Auglaize

No. 2-06-35, 

, quoting The American Heritage Dictionary 117

(2d College Ed.1985). “‘[T]he insertion of the word “any” into the definition of

“force,” recognizes that different degrees and manners of force are used in various

crimes with various victims.’” 

 quoting State v. Lillard, 8th Dist. Cuyahoga No.

69242, 

, *6 (May 23, 1996). “Ohio Supreme Court case law

demonstrates that the type and amount of force necessary to purposely compel a


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Case Nos. 7-19-09, 7-19-10


victim to submit ‘by force or threat of force’ depends upon the victim and offender’s

relationship.” State v. Wine, 3d Dist. Auglaize No. 2-12-01, 

,

quoting R.C. 2907.05(A)(1) and citing State v. Pordash, 9th Dist. Lorain No.

04CA008480, 

.

       {¶15} The offense of sexual imposition is codified in R.C. 2907.06(A)(1),

which provides, in relevant part: “No person shall have sexual contact with another,

not the spouse of the offender … when … [t]he offender knows that the sexual

contact is offensive to the other person … or is reckless in that regard.”

       {¶16} The offenses of which Burke was convicted involve, to some extent,

three different degrees of culpable mental state—purpose, knowledge, and

recklessness. “A person acts purposely when it is the person’s specific intention to

cause a certain result, or, when the gist of the offense is a prohibition against conduct

of a certain nature, regardless of what the offender intends to accomplish thereby, it

is the offender’s specific intention to engage in conduct of that nature.” R.C.

2901.22(A). “A person acts knowingly, regardless of purpose, when the person is

aware that the person’s conduct will probably cause a certain result or will probably

be of a certain nature.”       R.C. 2901.22(B).       “A person has knowledge of

circumstances when the person is aware that such circumstances probably exist.”

 “When knowledge of the existence of a particular fact is an element of an

offense, such knowledge is established if a person subjectively believes that there is


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Case Nos. 7-19-09, 7-19-10


a high probability of its existence and fails to make inquiry or acts with a conscious

purpose to avoid learning the fact.” 

 “A person acts recklessly when, with

heedless indifference to the consequences, the person disregards a substantial and

unjustifiable risk that the person’s conduct is likely to cause a certain result or is

likely to be of a certain nature.” R.C. 2901.22(C). “A person is reckless with respect

to circumstances when, with heedless indifference to the consequences, the person

disregards a substantial and unjustifiable risk that such circumstances are likely to

exist.” 

       {¶17} First, we will address Burke’s argument that his gross-sexual-

imposition conviction is not supported by sufficient evidence. Specifically, Burke

argues that the State did not offer sufficient evidence to support a finding that he

used force during the alleged incident.        Because Burke challenges only the

sufficiency of the State’s evidence showing that he employed “force,” we focus

solely on whether the State presented sufficient evidence to prove this element.

       {¶18} At trial, R.Z. testified that she ran cross country during her freshman

year at Napoleon High School and was coached by Burke during the 2018 season.

(Aug. 5-8, 2019 Tr. at 100-102). R.Z. described the uniform shorts that the cross

country team wore and noted that the shorts have “built in underwear.” (Id. at 104).

R.Z. stated that the cross country team’s uniform shorts open on the side for comfort

when running and that the built in underwear provides modesty while running. (Id.).


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Case Nos. 7-19-09, 7-19-10


        {¶19} R.Z. testified that during picture day for the cross country team, she

was talking to several friends while waiting in line to have her individual photograph

taken when the photographer noted that a male athlete’s underwear was showing.

(Id.). R.Z. testified that Burke then approached her and pulled on the built-in

underwear of her uniform shorts, apparently to demonstrate to the photographer that

the shorts had built-in underwear. (Id.). R.Z. demonstrated to the jury how and

where Burke pulled on her shorts. (Id.). R.Z. testified that when Burke pulled on

her shorts, it caused the shorts to lower so much that the band of her actual

underwear was exposed. (Id. at 104-105). According to R.Z., her uniform shirt was

tucked into her pants before the incident occurred. (Id. at 105). R.Z. stated that

Burke’s hand touched her thigh while he was pulling on her shorts. (Id.).

        {¶20} C.L. and J.C., who ran cross country for Napoleon High School during

the 2018 season, testified that they were talking to R.Z. on cross country picture day

when Burke approached R.Z. and pulled on the built-in underwear in R.Z.’s uniform

shorts. (Id. at 172, 174-175, 296-298). C.L. further testified that Burke pulled on

the built-in underwear twice. (Id. at 297-298). The first time, he exposed the built-

in underwear. (Id.). The second time, he exposed R.Z.’s “real” underwear. (Id. at

298).

        {¶21} During his testimony, Burke denied pulling on the built-in underwear

in R.Z.’s shorts or touching R.Z.’s thigh. (Id. at 732, 735). Burke alleged that


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Case Nos. 7-19-09, 7-19-10


R.Z.’s, J.C.’s and C.L.’s testimonies regarding the incident with R.Z.’s shorts were

lies. (Id. at 735).

       {¶22} Construing the evidence in a light most favorable to the State, we

conclude that a rational trier of fact could have found that the State proved the force

element of gross sexual imposition beyond a reasonable doubt. R.Z. and C.L.

testified that Burke pulled on the built-in underwear in R.Z.’s uniform shorts with

enough force to expose R.Z.’s actual underwear. R.Z. demonstrated to the jury how

and where Burke pulled on her shorts. However, having only a transcribed record

of the trial court proceedings and considering that we must construe the evidence in

favor of the State, we presume that R.Z.’s demonstration was sufficient to support

a finding that Burke used force to compel her to submit to his touching of her thigh.

See State v. Knight, 2d Dist. Greene No. 2003 CA 14, 

(“Notably, Wilson demonstrated to the jury how Knight held his hands. Having

only a transcribed record of the trial court proceedings and considering that we must

construe the evidence in favor of the prosecution, we presume that Wilson’s

demonstration was sufficient to support a reasonable inference that Knight

possessed a deadly weapon.”). See also State v. Melton, 2d Dist. Montgomery No.

22591, 

. Moreover, C.L. testified that she witnessed Burke

pull the built-in underwear in R.Z.’s uniform shorts twice and that the second pull,

which exposed R.Z.’s actual underwear, occurred after Burke demonstrated the


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Case Nos. 7-19-09, 7-19-10


presence of the built-in underwear. This testimony, combined with R.Z.’s age and

the relationship between the parties, supports the jury’s finding that Burke used

force to compel R.Z. to submit to the sexual contact. Accordingly, a rational jury,

construing the evidence in the light most favorable to the State, could reasonably

have found that the State proved the element of force beyond a reasonable doubt.

Therefore, as this is the only element of the offense Burke challenges, there is

sufficient evidence supporting Burke’s gross-sexual-imposition conviction.

       {¶23} Having determined that Burke’s gross-sexual-imposition conviction

was supported by sufficient evidence, we next address Burke’s argument that the

State did not present sufficient evidence to support his sexual-imposition conviction

involving S.N. With respect to this sexual-imposition conviction, Burke argues that

the State did not offer sufficient evidence to support a finding that the area of S.N.’s

body that he touched during the alleged sexual contact was an erogenous zone.

Because Burke only challenges the sufficiency of the State’s evidence showing that

he touched one of S.N.’s erogenous zones, our analysis will be limited to the State’s

evidence supporting that element.

       {¶24} At trial, S.N. testified that she was a member of the cross country team

at Napoleon High School and was coached by Burke for four years. (Aug. 5-8, 2019

Tr. at 207-209).     S.N. stated that Burke gave her hugs that made her feel




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Case Nos. 7-19-09, 7-19-10


uncomfortable. (Id. at 209-212). S.N. stated that Burke put his hand on her hip and

“kind of moved it.” (Id. at 209).

       {¶25} S.N. identified State’s Exhibits 5A, 5B, and 5C as a series of

photographs depicting an interaction between her and Burke at a cross country meet

during the 2016 season. (Id. at 209-212). (See State’s Exs. 5A, 5B, 5C). S.N.

testified that State’s Exhibit 5A depicts Burke “tapping” or “patting” her on her hip.

(Aug. 5-8, 2019 Tr. at 210-211). (See State’s Ex. 5A). State’s Exhibit 5C depicts

Burke standing behind S.N. with his arms wrapped around her and his head placed

in the crook of S.N.’s neck. (Aug. 5-8, 2019 Tr. at 211-212). (See State’s Ex. 5C).

S.N. testified that in State’s Exhibit 5C, one of Burke’s arms is positioned under her

“chest” and the other arm is around her neck. (Aug. 5-8, 2019 Tr. at 212). (See

State’s Ex. 5C). State’s Exhibit 5B depicts the same embrace as State’s Exhibit 5C.

(Aug. 5-8, 2019 Tr. at 211).        (See State’s Ex. 5-B).    S.N. testified that the

photographs are accurate depictions of the type of hugs that Burke gave during the

2016 cross country season. (Aug. 5-8, 2019 Tr. at 212). (See State’s Exs. 5B, 5C).

       {¶26} Burke admitted that his hand was by S.N.’s breasts in State’s Exhibits

5B and 5C, but denied that his hand was on S.N.’s hip and buttocks area in State’s

Exhibit 5A. (Aug. 5-8, 2019 Tr. at 729-730, 738-739). (See State’s Exs. 5A, 5B,

5C). Rather, Burke stated that the photograph depicts him bringing his hand “down

away from [S.N.].” (Aug. 5-8, 2019 Tr. at 739). (See State’s Ex. 5A).


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       {¶27} Although Burke argues that the State needed to present evidence that

he touched S.N.’s thigh or buttocks to prove that he had sexual contact with S.N.,

this court has stated that “[s]ince R.C. 2907.01(B) contains the phrase, ‘including

without limitation,’ it is reasonable to conclude ‘that the legislature intended that

body parts that are not traditionally viewed as erogenous zones, may, in some

instances, be considered erogenous zones.’” State v. Peddicord, 3d Dist. Henry No.

7-12-24, 

, quoting State v. Miesse, 2d Dist. Clark No. 99-CA-

74, 

 (Aug. 18, 2000). “Indeed, Ohio courts have typically found

that the list of erogenous zones in R.C. 2907.01 is a non-exhaustive list.” Id. at ¶

16. Moreover, an Ohio court has found that a victim’s hips constituted an erogenous

zone. See State v. Stair, 12th Dist. Warren No. CA2001-03-017, 

,

*3-4 (Jan. 14, 2002) (finding the victim’s hips constitute an erogenous zone).

Accordingly, the State did not need to present evidence that Burke touched S.N.’s

thigh or buttocks to satisfy the element of sexual contact.

       {¶28} Moreover, in addition to S.N.’s testimony that Burke repeatedly

touched her on an area of her body that she characterized as her hip, State’s Exhibit

5A depicts Burke touching S.N. on the area of her body that she described as her

“hip” during her testimony. Thus, the jury was able to view the photograph and

determine whether the area of S.N.’s body that Burke was touching in the




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photograph constituted an erogenous zone, irrespective of the language S.N. used

to characterize the relevant area of her body.

       {¶29} Furthermore, State’s Exhibits 5B and 5C depict Burke standing behind

S.N., with one of his hands positioned under her breasts—a fact that Burke himself

admitted in his testimony. Accordingly, the trier of fact could have found that this

also constituted sexual contact. See State v. Coleman, 3d Dist. Logan No. 8-17-50,

 (finding that the Appellant engaged in sexual contact with

the female victim when he touched her breasts over her clothes).

       {¶30} Thus, for the foregoing reasons, viewing the evidence in a light most

favorable to the State, a rational trier of fact could have found that the State proved

that Burke had engaged in sexual contact with S.N. Therefore, as this is the only

element of the offense Burke challenges, there is sufficient evidence supporting

Burke’s sexual-imposition conviction.

       {¶31} Having found that sufficient evidence supports Burke’s gross-sexual-

imposition and sexual-imposition convictions, we now turn to Burke’s assertion that

his gross-sexual-imposition and sexual-imposition convictions are against the

manifest weight of the evidence. Although Burke summarily argues that the

convictions are against the manifest weight of the evidence, he fails to advance any

specific arguments that the evidence produced at trial weighs heavily against the




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convictions. Rather, Burke’s brief focuses on the sufficiency of the State’s evidence

with respect to several elements of the offenses, which we addressed above.

       {¶32} “‘[A] defendant has the burden of affirmatively demonstrating the

error of the trial court on appeal.’” State v. Costell, 3d Dist. Union No. 14-15-11,

, quoting State. v Stelzer, 9th Dist. Summit No. 23174, 2006-

Ohio-6912, ¶ 7. If an argument exists that can support an assignment of error, it is

not this court’s duty to root it out. State v. Shanklin, 3d Dist. Union No. 14-13-23,

, citing State v. Raber, 

, 2010-Ohio-

4066, ¶ 30 (9th Dist.). Accordingly, we need not address Burke’s claim that his

convictions are against the manifest weight of the evidence.

       {¶33} Even so, after weighing the evidence and evaluating the credibility of

the witnesses, with appropriate deference to the trier of fact’s credibility

determinations, we cannot conclude that the jury clearly lost its way and created

such a manifest miscarriage of justice that Burke’s gross sexual imposition and

sexual imposition convictions must be reversed.

       {¶34} Accordingly, Burke’s first and second assignments of error are

overruled.




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       {¶35} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgments of the trial court.

                                                               Judgments Affirmed

SHAW, P.J. and ZIMMERMAN, J., concur.

/jlr




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