[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 : O P I N I O N

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 AfricanAmerican 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