¶ 31.
dissenting. To prevail on his post-conviction
relief (PCR) claim of prejudicial failure by trial counsel to test his weapon for muzzle flash, all petitioner had to do was test the rifle for flash and introduce the results to the PCR court. For reasons known but to petitioner, he did not do so.2 Instead, petitioner presented a case of purely theoretical and unfounded prejudice, rather than prejudice in fact had any existed. Having failed to prove that the muzzle did not flash, petitioner further failed to establish that his trial counsel’s lack of challenge to the State’s reference to gunflash for purposes of proving aim was so prejudicial as to have likely affected the verdict in his criminal trial. Speculation to the contrary by the PCR court, and as now adopted by the majority to affirm, is no substitute for the *379necessary evidence not submitted below by petitioner. I respectfully dissent.
¶ 32. Assuming, even, that the absence of muzzle flash would have impeached the State’s witness to the point of exonerating petitioner, the point is moot without any evidence to support the premise. The trial court determined that petitioner’s muzzle flash experts failed in their attempted simulation to demonstrate that his rifle was unlikely to produce gunflash. The court then leaped over that failed experiment to conclude, without an iota of demonstrable prejudice, that trial counsel committed a critical error in not experimenting with the actual firearm. To obtain relief for his trial counsel’s omission of evidence, petitioner bore the “burden of affirmatively showing what the potential evidence would have been and how it would have produced a different result.” In re Dunbar, 162 Vt. 209, 216 n*, 647 A.2d 316, 322 n* (1994) (emphasis added); see also In re Plante, 171 Vt. 310, 318, 762 A.2d 873, 879 (2000) (declining to address merits of claimed inadequate performance by trial counsel when petitioner could not demonstrate resulting prejudice).
¶ 33. With his only proffer on the lack of muzzle flash rejected by the trial court as unreliable, petitioner showed neither what the results of a relevant flash test “would have been,” nor “how it would have produced different results.” See Grisby v. Blodgett, 130 F.3d 365, 372-73 (9th Cir. 1997) (finding no prejudice where petitioner was unable to test a certain piece of evidence — and therefore unable to show results from such tests that he believed would exonerate him); People v. Bolin, 956 P.2d 374, 400 (Cal. 1998) (finding no prejudice where petitioner presented no evidence that any expert “would have provided exculpatory evidence if called”). Whether the test evidence would have been helpful to petitioner, and therefore whether the omission of such evidence was prejudicial, is unknown — the answer remains in the muzzle of the rifle left untested by petitioner.
¶ 34. The PCR court’s agreement with petitioner’s second argument, that substantial prejudice resulted from trial counsel’s failure to secure expert testimony to dispute the State’s evidence that shooting direction could be discerned from gunflash, was not sufficiently supported. Again, petitioner had the burden to show what exculpatory testimony could have been presented, and how that testimony would have been reasonably likely to change the outcome at trial. Dunbar, 162 Vt. at 216 n.*, 647 A.2d at 322 n.*. *380Petitioner’s expert opined only that an observer of muzzle flash could not tell the particular direction of gunfire, as opposed to it being wildly fired towards the air or elsewhere. The expert did not refute the police testimony that gunflash could indicate general direction of gunfire.
¶ 35. Even if the expert proffered that muzzle flash indicated no direction whatsoever, such testimony would still not suffice to establish that, as a result, a different verdict was likely. It was petitioner’s “burden of showing that the decision reached would reasonably likely have been different” if such testimony had been presented. Strickland v. Washington, 466 U.S. 668, 696 (1984). This is not examined within the four corners of petitioner’s claim, but in light of the totality of the evidence presented at trial. Id. at 695. Petitioner must prove the prejudice claimed by a preponderance of the evidence. In re Washington, 2003 VT 98, ¶ 8, 176 Vt. 529, 838 A.2d 87 (mem.).
¶ 36. Petitioner’s expert would have neither overwhelmed nor significantly undermined the State’s case. It is settled that the State’s evidence, including the complaining witness’s testimony about gunfire in his direction based on his observation of at least a single gunflash, was enough to prove petitioner’s guilt beyond a reasonable doubt. State v. Russo, 2004 VT 103, ¶ 7, 177 Vt. 394, 864 A.2d 655. Petitioner’s expert testified that gunflash could not establish a specific shooting direction, while the State’s investigating police witnesses, who were available at trial, testified that flash could indicate direction. That there are merely competing opinions on this lone issue does not make a different result reasonably likely. See State v. Link, 25 S.W.3d 136, 149 (Mo. 2000) (en banc) (concluding that petitioner could not meet prejudice requirement because had defense called expert, prosecution would have called its own expert to counter, resulting in no likelihood of different outcome). Moreover, the verdict was not based on the complaining witness’s observation of a gunflash alone, but on the corroborating testimony of witnesses who heard what sounded like shots, and the police who found petitioner’s rifle leaning against the front passenger’s seat in his car, loaded and with a spent shell in the chamber, four other spent casings in the car, and live rounds on petitioner who followed the complaining witness to the police station at the end of what the complaining witness described as a chase.
¶ 37. No evidence at trial suggested the shots were fired other than in the complaining witness’s direction. Petitioner’s defense *381was absolute denial and he did not testify. From the available evidence it could be reasonably concluded beyond a reasonable doubt that petitioner pointed a gun at the complaining witness during their initial confrontation, that petitioner then chased the complaining witness, that petitioner was armed in his car, and that shots had been fired from his car. Neither at trial, nor at the later PCR hearing, did petitioner present any credible evidence to contradict the complaining witness’s observation of gunflash from petitioner’s car while being pursued by petitioner. It may be that petitioner chased the complaining witness shooting his rifle to leaven the early dark of autumn, to celebrate his unfortunate eviction, to tattoo the complaining witness’s truck, or just to annoy the neighborhood, but no such alternative rationales were offered for the jury’s consideration. Nor do they appear especially likely — and it was not the State’s burden to dispel such notions in any event. State v. Derouchie, 140 Vt. 437, 445, 440 A.2d 146, 149-50 (1981) (rejecting “exclusion of every reasonable hypothesis of innocence” test and holding “whether the evidence is direct, circumstantial, or a combination of both,” prosecution satisfies its burden of proof if evidence, when viewed in light most favorable to State, is persuasive of guilt beyond a reasonable doubt). The jury required no specialized or corroborating evidence on gunfire direction to reach a most obvious conclusion that petitioner, who threatened the complaining witness with a gun and then pursued him shooting, was attempting to cause the complaining witness “bodily injury with a deadly weapon” as charged.3
¶ 38. Given the PCR court’s conclusion that petitioner’s experts had no reliable evidence by which to sink the complaining witness’s underlying observation of muzzle flash and impeach him as an exaggerator, the experts could only counter that the gunflash described by the complaining witness was not particularly directional. The State’s police witnesses were available, in turn, to counter this contention. The testimony of the police witness would be entirely consistent with the balance of the State’s evidence that petitioner used a gun to threaten, chase, and shoot at the complaining witness. The testimony of petitioner’s expert might have partially contradicted the complaining witness’s *382perception of the gunfire being aimed in his direction, but offered nothing to derail the essential elements of the State’s version of the offense — a version that remains uncontroverted.
¶ 39. The PCR court expressly noted that petitioner’s firearms “experiment had too many variables and differences from the actual event to have been admissible at trial.” Thus, the court did not perceive this evidence as particularly exculpatory, and it does not appear more so on appeal. Whatever question the expert could raise concerning the complaining witness’s lay-observation on direction of fire would not, by a preponderance of evidence, lead the jury to a different verdict. See Evans v. Thompson, 465 F. Supp. 2d 62, 82 (D. Mass. 2006) (rejecting ineffective-assistance-of-counsel claim premised on failure to call ballistics expert because none of proposed expert testimony would have significantly challenged State’s version of events); see also Strickland, 466 U.S. at 696 (noting that petitioner, even if he does present some countervailing evidence, is less likely to be able to prove prejudice when a jury’s verdict rests on “overwhelming record support”).
¶ 40. Petitioner’s expert opinion was not so exculpatory as to have had a “pervasive effect on the inferences to be drawn from the evidence [presented at the criminal trial], altering the entire evidentiary picture” such that a different verdict is reasonably likely. Strickland, 466 U.S. at 695-96. Avoiding this fact, the trial court and the majority draw too much on mere possibilities and hindsight. To the extent the majority finds the State’s case weak or its claims implausible, it seems to substitute its judgment for the jury and for the trial court that it has already once affirmed. PCR is concerned only with what petitioner was able to show at the PCR court and, according to the PCR court, petitioner showed only that his criminal trial counsel negligently failed to secure an opinion that the direction of shooting may not necessarily be determined from visible gunflashes. This would cast no monkey wrench into the State’s overall circumstantial and eyewitness case.
¶ 41. That his trial counsel may have performed below professional standards does not earn petitioner post-conviction relief without proof of prejudice. Strickland, 466 U.S. at 694; In re Washington, 2003 VT 98, ¶ 8; Dunbar, 162 Vt. at 212, 647 A.2d at 319. Risking what the PCR court found to be an unreliable simulation, rather than test firing his weapon, petitioner offered *383utterly no evidence of prejudice resulting from trial counsel’s failure to test for muzzle flash. The conclusion by the PCR court, and the majority’s conclusion here, of prejudice to the defense are wholly unsupported by any evidence, are clearly erroneous, and cannot be sustained. Massey v. Hrostek, 2009 VT 70, ¶ 16, 186 Vt. 211, 980 A.2d 768 (reversing where findings insufficient to support trial court’s conclusion). Petitioner’s complaint of prejudice on account of trial counsel’s failure to organize an expert challenge to the State’s evidence of shooting direction was almost equally unfounded for lack of materiality. The findings and conclusion to the contrary by the PCR court, and approved by the majority, are not supported by the evidence and should not stand. Accordingly, the judgment of the PCR court granting post-conviction relief should be reversed.
¶ 42. I am authorized to state that Justice Dooley joins in this dissent.Petitioner does not claim the State withheld the gun from testing, or that it was otherwise made unavailable by the prosecution. The docket reflects no defense motion to obtain the weapon for testing up to the time of hearing. Indeed, the record and the State indicate that access was requested and granted to petitioner after the PCR hearing concluded.
Similarly, in denying petitioner’s motion for acquittal after the jury’s verdict of guilty, the trial court concluded from this evidence that there was no evident reason for petitioner to fire the weapon other than to cause bodily injury to the victim.