[Cite as State v. Emrath, 2013-Ohio-4231.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. William B. Hoffman, P.J.
Plaintiff - Appellee : Hon. Sheila G. Farmer, J.
: Hon. Craig R. Baldwin, J.
:
-vs- :
:
BRYAN EMRATH : Case No. 12CA110
:
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Richland County
Court of Common Pleas, Case No.
2012-CR-276D
JUDGMENT: Affirmed
DATE OF JUDGMENT: September 23, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
BRENT N. ROBINSON R. JOSHUA BROWN
Richland County 32 Lutz Avenue
First Assistant Prosecutor Lexington, OH 44904
38 South Park Street
Mansfield, OH 44902
Richland County, Case No. 12CA110 2
Baldwin, J.
{¶1} Appellant Bryan Emrath appeals a judgment of the Richland County
Common Pleas Court convicting him of two counts of murder (R.C. 2903.02(A),(B)) with
a firearm specification (R.C. 2929.14(D)(1)). Appellee is the State of Ohio.
STATEMENT OF FACTS AND CASE
{¶2} In January of 2012, appellant met Rachel Kiser through an online dating
site called Plenty of Fish. Rachel moved in with appellant shortly thereafter.
{¶3} By his own admission, appellant has never held a steady job, nor has he
paid child support for his three children, ages six years, three years, and one year.
Rachel worked at O’Bryan’s Pub, a bar and restaurant in Ashland.
{¶4} On April 27, 2012, Rachel went to her job at O’Bryan’s Pub. During the
day, she checked her phone frequently for messages from appellant. She told a
coworker that appellant did not believe that she was at work.
{¶5} Appellant spent April 27, 2012, playing an online video game, which he
played every day. He also sold their chinchilla on Craig’s List for $70. He became
stressed as the day wore on because his ex-wife did not bring his children over as he
expected, he had bills to pay, and he could not take a shower because the water to the
apartment had been turned off. His messages to Rachel throughout the day reveal that
he was feeling insecure about the relationship and about Rachel possibly leaving him.
{¶6} Appellant took his dog for a walk to his sister’s house. From there,
appellant’s brother-in-law drove him to Circle K, where appellant purchased an
eighteen-pack of beer. He retrieved his dog and walked home, where he continued to
Richland County, Case No. 12CA110 3
play his online game, looked on Craig’s List to trade his gun for a cell phone, and drank
beer.
{¶7} Rachel returned home late that night after her shift ended at O’Bryan’s.
Appellant had been drinking beer. While he normally smoked marijuana before bed, he
had not yet smoked marijuana when Rachel returned home. The couple argued.
Appellant flipped over a pool table, grabbed his rifle, and shot Rachel twice. Appellant
attempted to call 911 from Rachel’s cell phone, but he could not figure out how to
unlock the phone. She had purchased a new phone that day because appellant broke
her old phone during a previous argument.
{¶8} Disturbed at the sound of Rachel gagging on her own blood, appellant left
the apartment. He attempted unsuccessfully to awaken a neighbor to call for help.
Appellant then returned to the apartment, figured out how to operate Rachel’s phone,
and called for help. He told the dispatcher, “We got in an argument and I shot my
girlfriend.”
{¶9} Police and emergency medical personnel responded to the scene. Rachel
was found already deceased in the apartment, with her purse and car keys nearby and
the gun a few feet away. Police cleared appellant’s semi-automatic rifle, finding thirteen
live rounds and two rounds spent.
{¶10} Ptl. Jacob Rietschlin of the Mansfield Police Department handcuffed
appellant and led him to the cruiser. While driving appellant to the station, appellant
began crying and banging his head against the window. He asked if Rachel was okay
and said that he did not mean to hurt her.
Richland County, Case No. 12CA110 4
{¶11} At the police station, Officer Terry Rogers prepared to interview appellant.
Earlier Officer Rietschlin had asked appellant if he was a Notre Dame fan because
appellant had a clover tattooed on his ankle. This question seemed to provoke
appellant, who called Rietschlin an “Irish prick,” an “Irish fuck”, and a “mother-fucker.”
The officers determined that Rogers had a better rapport with appellant and should
therefore talk with him about happened.
{¶12} Patrolman Rogers read appellant his Miranda rights and appellant signed
a waiver of his rights, saying he was “fucked anyhow.” However, appellant said that he
would not give a taped statement without counsel present. He agreed to talk if the
statement was not taped. Rogers began preparing paperwork to take appellant to the
hospital for blood work. Without questioning from Rogers, appellant told Rogers that he
and Rachel argued, he threw the pool table, grabbed his rifle, pointed it at Rachel and
pulled the trigger twice.
{¶13} On the way to the hospital, appellant continued to cry and say that he
didn’t mean to shoot Rachel. At the hospital his emotions were unstable, alternating
between anger and sadness. Appellant yelled racial slurs at a group of African-
American people in the waiting room, and told officers, “Once I get these cuffs off, I’ll
fuck you up.” He asked Sgt. Joseph Petrycki of the Mansfield Police Department if
Rachel was dead. When Petrycki told appellant that she was dead, appellant said to
the officer, “Fuck you and your green army pants, you mother-fucker.” Appellant said
that Rachel did not deserve to die over something stupid, and he deserved the death
penalty.
Richland County, Case No. 12CA110 5
{¶14} Appellant was indicted by the Richland County Grand Jury with two counts
of murder with a firearm specification.
{¶15} Appellant filed a motion to suppress all statements he made to police as
obtained in violation of Miranda. After a suppression hearing, the court suppressed
statements made to Ptl. Rietschlin in response to questioning after appellant was
handcuffed, but before he was Mirandized. The court found that appellant waived his
Miranda rights at the police station and agreed to talk as long as his statements were
not recorded, which they were not. The court further found that appellant’s unsolicited
statements were admissible.
{¶16} The case proceeded to jury trial in the Richland County Common Pleas
Court. Appellant testified that he intended to commit suicide with the gun, Rachel
attempted to grab the gun from him, and the gun went off during the struggle.
{¶17} The jury convicted appellant as charged in the indictment. The court
found that the second count of murder was an allied offense with the first count.
Appellant was sentenced to a term of incarceration of fifteen years to life for murder,
and an additional three years on the firearm specification. He assigns two errors on
appeal:
{¶18} “I. IN SMITH V. ILLINOIS THE U.S. SUPREME COURT HELD AN
ACCUSED WHO, DURING CUSTODIAL INTERROGATION, HAS EXPRESSED HIS
DESIRE TO DEAL WITH POLICE ONLY THROUGH COUNSEL IS NOT SUBJECT TO
FURTHER INTERROGATION BY THE AUTHORITIES UNTIL COUNSEL HAS BEEN
MADE AVAILABLE. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
Richland County, Case No. 12CA110 6
ALLOWING INTO EVIDENCE STATEMENTS ALLEGEDLY MADE BY APPELLANT
WHILE IN POLICE CUSTODY.
{¶19} “II. EVIDENCE RULE 803(3) PROVIDES FOR THE ADMISSIBILITY OF
STATEMENTS MADE BY THE DECLARANT CONCERNING HIS THEN EXISTING
STATE OF MIND, EMOTIONS, SENSATIONS, OR PHYSICAL CONDITION. THE
TRIAL COURT COMMITTED REVERSIBLE ERROR BY ALLOWING JAZETTE
WINGARD AND SHERYL BUFFMYER TO TESTIFY ABOUT DECEDENT’S
COMMENTS REGARDING HER RELATIONSHIP WITH APPELLANT.”
I.
{¶20} In his first assignment of error, appellant argues that the court erred in
admitting statements he made in the car on the way to the police station, as he was in
custody and had not yet been read his Miranda rights. Appellant also argues that the
court erred in admitting any statements he made after he indicated to police that he
would not give a taped statement without counsel present.
{¶21} In reviewing a trial court’s ruling on a motion to suppress, the weight of the
evidence and credibility of witnesses are primarily for the trier of fact. State v. Smith, 80
Ohio St. 3d 89, 105-106, 684 N.E.2d 668 (1997).
{¶22} A suspect who volunteers information without being asked questions is not
subject to a custodial interrogation and is not entitled to Miranda warnings. State v.
McGuire, 80 Ohio St.3d 390, 401, 686 N.E.2d 1112 (1997), citing State v. Roe, 41 Ohio
St.3d 18, 22, 535 N.E.2d 1351 (1989). In other words, “Miranda does not affect the
admissibility of ‘[v]olunteered statements of any kind.’ ” Id., citing Miranda v. Arizona,
384 U.S. 436, 478, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
Richland County, Case No. 12CA110 7
{¶23} The trial court suppressed statements appellant made in response to Ptl.
Rietschlin’s question about what happened, as appellant was in custody but had not yet
been Mirandized. However, the evidence reflects that all statements appellant made in
the cruiser on the way to the police station were not in response to questioning and
were unsolicited by police. The court did not err in admitting these volunteered
statements.
{¶24} Appellant signed a written waiver of Miranda rights at the police station,
but stated that police could not record his statement unless an attorney was present.
Appellant told police that he was a criminal justice major and knew that only a recorded
statement could be admitted into evidence against him. Appellant argues that because
he invoked his right to counsel, anything he said after that point was inadmissible.
{¶25} The testimony presented at the suppression hearing demonstrates that
after appellant stated that he would not give a taped statement without an attorney
present, all questioning ceased. Ptl. Rogers stayed in the room with appellant but
began filling out paperwork necessary for transporting appellant to the hospital for a
blood draw. At that point, appellant volunteered information to Rogers about the
shooting. Likewise, all statements made by appellant at the hospital and on the way to
the hospital were unsolicited and not in response to questioning by officers.
{¶26} “‘Interrogation’ includes express questioning as well as ‘any words or
actions on the part of the police (other than those normally attendant to arrest and
custody) that the police should know are reasonably likely to elicit an incriminating
response from the suspect.’ ” State v. Strozier, 172 Ohio App.3d 780, 2007-Ohio-4575,
876 N.E.2d 1304, at ¶ 20, quoting Rhode Island v. Innis (1980), 446 U.S. 291, 301, 100
Richland County, Case No. 12CA110 8
S.Ct. 1682, 64 L.Ed.2d 297. In the instant case, the police did not interrogate appellant.
All actions by the police were attendant to arrest and custody, and to transporting
appellant to the hospital for blood work. The only statements made by police to
appellant concerning the shooting were in response to appellant’s questions about the
condition of the victim. Once appellant conditionally invoked his right to counsel
concerning recorded statements, not only did police not attempt to take a recorded
statement from appellant, but they ceased questioning appellant. All further statements
the court admitted into evidence were unsolicited statements and not the product of
interrogation.
{¶27} The first assignment of error is overruled.
II.
{¶28} In his second assignment of error, appellant argues that the court erred in
admitting hearsay statements made by the victim to two of her coworkers concerning
her relationship with appellant.
{¶29} Jazzette Wingard and Sheryl Buffmyer both worked with Rachel at
O’Bryan’s. Jazzette testified that eight days before Rachel was murdered, Rachel told
Jazzette that she and appellant were not getting along and had been arguing. Rachel
told Jazzette that she was going to leave appellant if he drinks again, as what she goes
through when appellant drinks is not worth it. Sheryl Buffmyer testified that on Rachel’s
last day at work before she was killed, Rachel appeared frustrated and anxious, and
when Sheryl asked what was wrong, Rachel responded that appellant did not believe
she was coming into work that morning.
Richland County, Case No. 12CA110 9
{¶30} Evid. R. 803(3) provides that evidence is not excluded by the hearsay rule
if it is a “statement of the declarant’s then existing state of mind, emotion, sensation, or
physical condition (such as intent, plan, motive, design, mental feeling, pain and bodily
health).” In State v. O’Neal, 87 Ohio St. 3d 402, 411-412, 721 N.E.2d 73 (2000), the
Ohio Supreme Court held that statements by a murder victim that she was feeling
stressed, was afraid of her husband, and planned to end her marriage were admissible
under Evid. R. 803(3).
{¶31} Rachel’s statements to Jazzette that she and appellant had been arguing
and she planned to leave appellant were admissible under Evid. R. 803(3). These
statements reflect Rachel’s state of mind, and her intent to leave appellant if his drinking
continued.
{¶32} Rachel’s statement to Sheryl that appellant did not believe she was at
work was not admissible under Evid. R. 803(3), as the statement was not of her own
state of mind, but rather was a statement of appellant’s state of mind. However, we find
that admission of this statement was harmless error. Crim. R. 52(A) defines harmless
error: “Any error, defect, irregularity, or variance which does not affect substantial rights
shall be disregarded.” The test for determining whether the admission of erroneous
evidence is harmless requires the reviewing court to look at the whole record, leaving
out the disputed evidence, and then to decide whether there is other substantial
evidence to support the guilty verdict. State v. Riffle, Muskingum App. No.2007–0013,
2007–Ohio-5299 at ¶ 36–37 (Citing State v. Davis (1975), 44 Ohio App.2d 335, 347,
338 N.E.2d 793). The messages appellant sent to Rachel’s phone had been admitted
into evidence prior to Sheryl’s testimony. In these messages, appellant asked where
Richland County, Case No. 12CA110 10
she was and indicated a fear that Rachel was lying to him. Therefore, Sheryl’s
testimony that Rachel said appellant thought she was lying about being at work was
merely cumulative.
{¶33} The second assignment of error is overruled. The judgment of the
Richland County Common Pleas Court is affirmed. Costs are assessed to appellant.
By: Baldwin, J.
Hoffman, P.J. and
Farmer, J. concur.
HON. CRAIG R. BALDWIN
HON. WILLIAM B. HOFFMAN
HON. SHEILA G. FARMER
CRB/rad
[Cite as State v. Emrath, 2013-Ohio-4231.]
IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff -Appellee :
:
-vs- : JUDGMENT ENTRY
:
BRYAN EMRATH :
:
Defendant -Appellant : CASE NO. 12CA110
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Richland County, Ohio is affirmed. Costs
assessed to appellant.
HON. CRAIG R. BALDWIN
HON. WILLIAM B. HOFFMAN
HON. SHEILA G. FARMER