[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
