In re Oliver10/31/2005
y counsel's ineffectiveness. This requires a showing that there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. Bradley, supra at syllabus paragraph three. A reasonable probability is a probability sufficient to undermine confidence in the outcome.
{ } The United States Supreme Court and the Ohio Supreme Court have held a reviewing court "need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies." Bradley at 143, quoting Strickland at 697. Accordingly, we will direct our attention to the second prong of the Strickland test.
{ } The first area in which appellant alleges that his trial counsel was ineffective was in counsel's failure to move for a Crim. R. 29 motion for acquittal at the conclusion of the State's case and at the conclusion of his case.
{ } "The purpose of a motion for judgment of acquittal is to test the sufficiency of the evidence and, where the evidence is insufficient, to take the case from the jury. In the non-jury trial, however, the defendant's plea of not guilty serves as a motion for judgment of acquittal, and obviates the necessity of renewing a Crim.R. 29 motion at the close of all the evidence. See the following cases decided under the analogous Fed.R.Crim.P. 29: Hall v. United States (C.A. 5, 1961), 286 F.2d 676, 677, certiorari denied, 366 U.S. 910, 81 S.Ct. 1087, 6 L.Ed.2d 236; United States v. Besase (C.A. 6, 1967), 373 F.2d 120, 121; United States v. Pitts (C.A. 5, 1970), 428 F.2d 534, 535, certiorari denied, 400 U.S. 910, 91 S.Ct. 154, 27 L.Ed.2d 149. See also, 8A Moore's Federal Practice, Paragraphs 29.01 Et seq." Dayton v. Rogers (1979), 60 Ohio St.2d 162, 163, 398 N.E.2d 781, overruled on other grounds, State v. Lassaro (1996), 76 Ohio St.3d 261, 266, 667 N.E.2d 384. Crim. R. 29 has no application in a case tried to the court. Id.
{ } As appellant's case was tried before a magistrate, the failure of appellant's trial counsel to make a Crim. R. 29 motion for judgment of acquittal is harmless error. Appellant has failed to demonstrate that there exists a reasonable probability that, had trial counsel made such a motion, the result of his trial would have been different.
{ } Appellant final contention is that trial counsel was ineffective in failing to object to the Magistrate's decision and failing to request Findings of Fact and Conclusions of Law from the trial court.
{ } In light of our disposition of appellant's First and Second Assignments of Error, supra, Appellant has failed to demonstrate that there exists a reasonable probability that, had trial counsel made such a request, the result of his trial would have been different.
{ } Appellant's Third Assignment of Error is overruled.
{ } For the foregoing reasons, the judgment of the Licking County Court of Common Pleas, Juvenile Division, Ohio, is affirmed.
By Gwin, J., Boggins, P.J., and Hoffman, J., concur
JUDGMENT ENTRY
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Licking County Court of Common Pleas, Juvenile Division, Ohio, is affirmed.
Costs to appellant.
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