State v. Richard R. Bays, 98-LW-0059

CourtUnited States Court of Appeals (Ohio)
Writing for the CourtFAIN, J.
PartiesSTATE OF OHIO, Plaintiff-Appellee v. RICHARD R. BAYS, Defendant-Appellant CASE NO. 95-CA-118
Decision Date30 January 1998
Docket Number95-CA-118,98-LW-0059

STATE OF OHIO, Plaintiff-Appellee

RICHARD R. BAYS, Defendant-Appellant

T.C. NO. 94-CR-30

No. 95-CA-118

98-LW-0059 (2nd)

January 30, 1998

WILLIAM F. SCHENCK, Prosecuting Attorney, By: ROBERT K. HENDRIX, Assistant Prosecuting Attorney, Atty. Reg. No. 37351, Greene County Courthouse, Xenia, OH 45385, Attorneys for Plaintiff-Appellee STATE OF OHIO

RICHARD A. NYSTROM, Atty. Reg. No. 40615, 1502 Hulman Bldg., 120 W. Second Street, Dayton, OH 45402 and CHARLES A. SMILEY, JR., Atty. Reg. No. 41308, 1712 West Third Street, Dayton, OH 45407, Attorneys for Defendant-Appellant RICHARD R. BAYS



Defendant-appellant Richard R. Bays appeals from his conviction and sentence for Aggravated Murder and Aggravated Robbery. He received the death sentence for Aggravated Murder. Although Bays assigns numerous errors, we are not persuaded that any of them justify reversing his conviction and sentence. Accordingly, the judgment of the trial court is Affirmed.

On the morning of November 15, 1993, Bays awoke in his home in Xenia, Ohio that he shared with his wife and three children. After watching television for several hours, Bays went to his father's house, borrowed $40, and returned home. Bays then walked to downtown Xenia and bought crack cocaine. Bays returned home around 1:30 p.m. and smoked the crack cocaine in the bathroom while his wife slept in the bedroom. Soon after, Bays woke his wife for work and continued to smoke crack cocaine after she left the house. Around 2:00 p.m., Bays decided to visit a friend who lived next door to him. Bays's friend was not home, so Bays decided to visit Charles Hanson Weaver who lived nearby at 230 South Collier Street, Xenia, Ohio.

Iris Simms, Weaver's neighbor, was walking to her house around 2:00 p.m. when she saw a slim man in his late twenties with long brown hair approach the Weaver residence. The man was alone.

By November, 1993, Weaver was 74 years old and confined to a wheelchair. On the day Weaver was killed, his daughter, Betty Mae Reed, had stopped by around 12:30 p.m. to pick up her mother to take her shopping. With his wife out shopping with their daughter, Weaver was left alone in the house for the afternoon.

Bays, still under the influence of the crack cocaine, knocked on Weaver's door. Weaver asked Bays to come in, and the two men talked for a short time. At some point, Bays asked Weaver to loan him $30. Weaver refused, saying that he did not have the money. In response, Bays picked up a heavy battery charger and pummeled Weaver over the head with it. After Bays hit Weaver twice with the battery charger, the handle broke off, and the battery charger fell to the ground in several pieces. Soon after, Weaver told Bays that he would call the sheriff. In response, Bays grabbed a tape recorder lying nearby and struck Weaver with it. The tape recorder broke after the first blow. Bays then grabbed a kitchen knife lying on a nearby counter and stabbed Weaver several times in the chest, perforating his right lung, aorta, vena cava, and right pulmonary artery. Bays then slit Weaver's throat with the knife. Weaver fell over and out of his wheelchair onto the floor. At that point, Bays grabbed Weaver's wallet, which was in his back pocket. Bays took the wallet, which contained $25 and food stamps. Bays then went into Weaver's bedroom and ransacked it while looking for more money. Finding none, Bays left Weaver's house with Weaver lying on the floor in a pool of blood.

After leaving Weaver's house, Bays went home and threw some of the clothes that he was wearing in the laundry. Seeing no blood on his t-shirt, Bays wore it as he walked back to downtown Xenia to buy more crack cocaine. On Main Street, Bays approached an acquittance, Howard Hargrave, and asked if he knew anyone who had any drugs. Hargrave, while noticing a blood stain on Bays's t-shirt, told him that he did not know anyone with drugs for sale. Eventually, Bays found a drug dealer and bought some crack cocaine with Weaver's money. Later that night, Bays discovered the blood stain on his t-shirt and disposed of the shirt, a glove he was wearing, and Weaver's wallet by throwing them down a storm sewer.

Some time after 5:00 p.m., Reed returned to 230 South Collier Street with her mother and her son. The house was dark, and Reed's son went inside to find his grandfather. He discovered Weaver's body lying motionless on the floor and told Reed to call 911. Reed ran across the street to Simms's house and called for an ambulance. The paramedics soon arrived and pronounced Weaver dead at the scene. The Xenia police department was called to investigate. Among other evidence, police recovered a strand of long brown hair clutched in Weaver's right hand.

The next day, the Xenia police received information that Bays had been seen shortly after the crime. The lead investigator, Detective Daniel Savage, decided to question Bays. During his first audio-taped interview, Bays told the Xenia police that he did visit Weaver on November 15th and that they had had coffee and engaged in small talk. At that time, Bays denied being involved in Weaver's murder.

Around November 19, 1993, Xenia police received information from a confidential informant that Bays had murdered Weaver and had disposed of key evidence by throwing it down a storm sewer. While police investigated the lead, Savage interviewed Bays at the Xenia police station. During his second audio-taped interview, Bays admitted to having beaten and stabbed Weaver after Weaver refused to loan him $30. Bays later acted out the killing for Savage on video-tape. Bays admitted to disposing of evidence down a storm sewer located at the intersection of South Monroe Street and East Second Street. Acting on Bays's information, police went to the storm sewer and discovered a white t-shirt, glove, and Weaver's wallet in the catch basin.

Bays was arrested and charged with Murder. While in custody, Bays told a fellow prisoner, Larry Adkins, that he had thought about committing the crime beforehand and had wanted his son-in-law to help him. Bays also told Adkins that after he had stabbed Weaver and took his wallet, he was going to leave the house, but then decided to go back and cut Weaver's throat to make sure that he was dead. When asked why he had killed Weaver instead of just taking the money by force, Bays laughed and said that he had killed Weaver because Weaver had put up a fight.

On January 14, 1994, the Greene County Grand Jury indicted Bays on three counts: Aggravated Murder (felony-murder), in violation of R.C. 2903.01(B), with a death penalty specification; Aggravated Robbery, in violation of R.C. 2911.01(A)(2); and Aggravated Murder (prior calculation and design), in violation of R.C. 2903.01(A), with a death penalty specification -- Counts I and III being capital offenses. On January 18, 1994, Bays pled not guilty to the crimes charged. On December 6, 1995, Bays waived his right to a jury trial, and a three-judge panel comprised of the Honorable Joseph B. Grigsby, the Honorable M. David Reid, and the Honorable Robert A. Hagler immediately began the trial. After swearing in its first witness, the State dismissed Count III of the indictment, without objection. From December 6th through December 8th, the panel heard testimony from the State's witnesses. Bays's oral confession, video confession, and Adkins's testimony were received in evidence. Cindy B. Dean, a forensic chemist at the Miami Valley Regional Crime Laboratory, testified that the hair clutched in Weaver's right hand was microscopically indistinguishable from Bays's hair, although the evidence sample was too small for conclusive DNA testing. Bays did not present any witnesses in his defense. On December 8, 1995, the panel filed its judgment entry finding Bays guilty beyond a reasonable doubt of Counts I and II of the indictment.

On December 11, 1995, the panel held a hearing to determine the sentence. Bays introduced testimony from various experts and relatives to establish mitigating circumstances. On December 15, 1995, the panel entered its judgment entry finding that the aggravating circumstances outweighed the mitigating circumstances. Bays was sentenced to death for the Aggravated Murder conviction and sentenced to an indefinite term of confinement of ten years of actual incarceration to twenty-five years of imprisonment for Aggravated Robbery.

From his conviction and sentence, Bays appeals.

Bays's First Assignment of Error is as follows:


Bays contends that the evidence presented at trial did not support his conviction on Counts I and II of the indictment. Specifically, Bays argues that his statements to the Xenia police on November 19, 1993, established that he did not form the intent to take Weaver's wallet until after he had killed Weaver. Bays claims that his confession establishes that he was going to leave Weaver's house after hitting Weaver with the battery charger, but instead killed Weaver only after Weaver threatened to call the sheriff. According to Bays, this admission proves that he did not intend to take Weaver's wallet until after the murder. Bays suggests that the contrary testimony of Larry Adkins was not credible because it was inconsistent and evidenced bias. In sum, Bays maintains that because he failed to form the requisite intent to steal Weaver's wallet before killing Weaver, he could not be convicted of Aggravated Murder, pursuant to R.C. 2903.01(B), and Aggravated Robbery, as charged.

The distinction between the sufficiency of the evidence and the weight of the evidence is set forth in State v. Thompkins (1997), 78 Ohio St.3d 380, 386-387, 678 N.E.2d 541:

With respect to sufficiency of the evidence "'sufficiency' is

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