[Cite as State v. Westrick, 196 Ohio App.3d 141, 2011-Ohio-1169.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

PUTNAM COUNTY 

 

THE STATE OF OHIO, 

 APPELLEE, CASE NO. 12-10-12 

 v. 

WESTRICK, O P I N I O N 

 APPELLANT. 

 

Appeal from Putnam County Common Pleas Court 

Trial Court No. 2008 CR 00050 

Judgment Affirmed 

Date of Decision: March 14, 2011 

 

APPEARANCES: 

Gary L. Lammers, for appellee. 

Andrew R. Bucher, for appellant. 
Case No. 12-10-12 

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SHAW, Judge. 

{¶1} Defendant-appellant, Nicole K. Westrick, appeals the August 30, 2010 

judgment of the Common Pleas Court of Putnam County, Ohio, finding that she 

had violated the terms of her judicial release, revoking her judicial release, and 

reimposing her sentence of 12 months. 

{¶2} The facts relevant to this appeal are as follows. On September 12, 

2008, Westrick was indicted on three counts of deception to obtain a dangerous 

drug in violation of R.C. 2925.22(A), each a felony of the fifth degree. Initially, 

Westrick pleaded not guilty to each offense, but on January 28, 2009, she 

withdrew her previously tendered plea of not guilty to Count Three of the 

indictment and entered a plea of guilty to that offense. In exchange for Westrick’s 

plea of guilty, the state agreed to dismiss the first two counts. A presentence 

investigation was ordered, and a sentencing hearing was held on March 31, 2009. 

{¶3} Westrick was placed on three years of community control under the 

general terms and provisions of the Adult Parole Authority. Among the special 

sanctions placed upon her were that she serve 30 days in jail and that she “have 

only one (1) medical care provider and one (1) pharmacy and shall disclose the 

same to her supervising officer.” The trial court also advised Westrick that if she 

violated the terms of her community control, she would receive a sentence of 12 

months in prison. 
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{¶4} In November 2009, the state filed two separate motions to revoke 

Westrick’s community control, listing numerous violations of her supervision. A 

hearing was held on these motions on November 19, 2009, and Westrick admitted 

to violating her community control as alleged by the state, including, inter alia, 

failing to use one medical provider and disclosing that provider to her supervising 

officer on three separate occasions and to using a pharmacy that was not disclosed 

to her supervising officer. As a result, the trial court sentenced her to 12 months in 

prison. 

{¶5} The trial court granted Westrick judicial release on February 17, 2010, 

and placed her under community-control sanctions once again under the general 

terms and provisions of the Adult Parole Authority. Among the special sanctions 

placed upon her this time were that she successfully complete the W.O.R.T.H. 

Center program and that she “have only one (1) medical care provider and one (1) 

pharmacy and shall disclose the same to her supervising officer.” 

{¶6} On July 23, 2010, the state filed a motion to revoke Westrick’s 

judicial release and to reimpose the remainder of her prison sentence. In this 

motion, the state alleged that Westrick had failed to use only one pharmacy and 

failed to inform her supervising officer that she was using a pharmacy other than 

the one she had previously disclosed to her supervising officer. After various 

delays, a hearing on the state’s motion to revoke Westrick’s judicial release was 

conducted on August 24, 2010. 
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{¶7} At the hearing, the state presented the testimony of Westrick’s current 

supervising officer, Duane Weiging, and her former supervising officer, Jim 

Szeremeta. Both officers testified that they each had explained the conditions of 

supervision to Westrick, including that she was to use only one pharmacy and was 

to advise them of which one she was using. Weiging also testified that Westrick 

had signed a document containing these terms and conditions of supervision and 

indicated that she had no questions about using only one pharmacy. When 

Weiging discussed the conditions of Westrick’s supervision with her, she 

informed him that she would be using the Walmart pharmacy located on Cable 

Road in Lima, Ohio, which was also the pharmacy on record for Westrick when 

she was under supervision with Szeremeta. 

{¶8} Szeremeta testified that in July 2010, Weiging was on vacation when 

he received a phone call from the Walmart on Cable Road regarding Westrick’s 

attempt to have a prescription for a Schedule II controlled substance refilled earlier 

than the date it was due to be refilled, which request the pharmacy denied. 

Szeremeta was also informed that Westrick later attempted to have her 

prescription transferred to a Walmart in Ottawa, Ohio, which was refused, and that 

she eventually transferred her prescription to a Rite Aid on Shawnee Road in 

Lima, Ohio. Szeremeta went to Rite Aid and learned that the pharmacy had filled 

the prescription for Westrick the day before but that she had also submitted two 

other prescriptions to be filled. Two days later, Westrick called Rite Aid to see if 

her prescriptions were ready, and the pharmacist contacted Szeremeta. He then 
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contacted the local police, who aided him in arresting Westrick when she picked 

up her prescriptions from Rite Aid. Westrick told him that she had changed to the 

Rite Aid pharmacy because it had a drive-through. 

{¶9} Westrick then presented the testimony of Amy Mankin, a Rite Aid 

pharmacist, who testified that the transfer of Westrick’s prescription from 

Walmart to Rite Aid was done in accordance with law. She also testified that 

Westrick’s transferred prescription was filled by Rite Aid and picked up by 

Westrick on Monday and that Rite Aid filled two other prescriptions for Westrick 

the next day, which Westrick picked up two days later. On cross-examination, 

Mankin testified that Westrick had told her that she needed to transfer the 

prescription and fill it because she was going on vacation. 

{¶10} The trial court found that Westrick had violated the terms of her 

judicial release and reimposed Westrick’s 12-month prison sentence. This appeal 

followed, and Westrick now asserts four assignments of error. 

Assignment of Error I

The trial court erred in failing to enter a judgment of acquittal 

pursuant to Crim.R. 29. 

Assignment of Error II 

The trial court erred in finding that appellant had violated 

community control, the same being an abuse of discretion. 

Assignment of Error III 

The trial court erred in finding that appellant had violated a 

term of community control which was overbroad and lacked a 

mechanism through which compliance could be assured. 
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Assignment of Error IV 

The trial court erred when it allowed hearsay evidence to be 

presented that constituted the only evidence relied upon to make the 

crucial determination of the community control violation, the same 

compromised appellant’s right to confrontation. 

{¶11} For ease of discussion, we elect to address the assignments of error 

out of order and to address the second and fourth assignments of error, which are 

interrelated, together. 

First Assignment of Error

{¶12} In her first assignment of error, Westrick maintains that the trial 

court erred in failing to grant her Crim.R. 29 motion for acquittal at the conclusion 

of the state’s evidence. However, Westrick acknowledges that this was a hearing 

to determine whether she had violated the terms of her judicial release and that a 

revocation hearing is not a criminal trial. See State v. Ryan, 3d Dist. No. 14-06-

55, 2007-Ohio-4743. 

{¶13} Crim.R. 29 states: “The court on motion of a defendant * * * after 

the evidence on either side is closed, shall order the entry of a judgment of 

acquittal of one or more offenses charged in the indictment, information, or 

complaint, if the evidence is insufficient to sustain a conviction of such offense or 

offenses.” (Emphasis added.) By its very language, Crim.R. 29 applies to trials 

for criminal offenses. A judicial-release-revocation hearing is not a criminal trial 

and does not result in a conviction. In fact, a violation of community-control 

sanctions does not necessarily involve criminal activity, such as the violation at 
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issue in the case sub judice. Thus, Crim.R. 29 was not applicable at Westrick’s 

hearing, and the trial court did not err in denying this motion. Accordingly, the 

first assignment of error is overruled. 

Third Assignment of Error

{¶14} In her third assignment of error, Westrick maintains that the trial 

court erred in finding that she had violated a condition of her judicial release that 

was overbroad and lacking a mechanism through which compliance could be 

assured. More specifically, she asserts that the condition that she have one 

pharmacy and disclose that pharmacy to her supervising officer was vague and 

that there was no mechanism to enforce it because the testimony of Szeremeta 

demonstrated that there was not a “set way” to report a change of circumstances to 

a supervising officer. 

{¶15} A trial court has broad discretion in imposing community-control 

sanctions. State v. Talty, 103 Ohio St.3d 177, 2004-Ohio-4888, 814 N.E.2d 1201, 

¶ 10. Nevertheless, a trial “court’s discretion in imposing [probationary 

conditions] is not limitless.” State v. Jones (1990), 49 Ohio St.3d 51, 52, 550 

N.E.2d 469. Rather, “probation conditions must be reasonably related to the 

statutory ends of probation and must not be overbroad.”1

 Talty at ¶ 16, citing 

 

1

 The court in Talty recognized that community control is the functional equivalent of probation and that 

the goals of probation, previously codified in R.C. 2951.02(C), were equally applicable to community 

control, although they were no longer explicitly stated in the Revised Code. Although Westrick’s 

community-control sanctions and conditions were imposed as a part of her judicial release and she was not 

on community control, we believe that the goals of community control apply equally to judicial release, 

which requires that a trial court impose “appropriate community control sanction[s], under appropriate 

conditions.” R.C. 2929.20(K). 
Case No. 12-10-12 

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Jones (relying upon a “commonsense” understanding of the conditions of 

supervision to determine whether a condition is overbroad and holding that 

“[c]ourts imposing conditions on probation are not expected to define with 

specificity the probationer’s behavior in all possible circumstances. Rather, the 

conditions must be clear enough to notify the probationer of the conduct expected 

of him”). The goals of community control are “rehabilitation, administering 

justice, and ensuring good behavior.” Talty at ¶ 16, citing Jones. Thus, “courts 

should consider whether the condition (1) is reasonably related to rehabilitating 

the offender, (2) has some relationship to the crime of which the offender was 

convicted, and (3) relates to conduct which is criminal or reasonably related to 

future criminality and serves the statutory ends of probation.” Jones at 52. 

{¶16} Here, Westrick was convicted of deception to obtain dangerous 

drugs. This charge stemmed from an investigation that revealed that in the course 

of just over two years, Westrick obtained prescriptions for various pain 

medications from 62 different prescribers without informing any of them that she 

was also being treated by other physicians who were also providing her with 

prescriptions for pain medications. She then filled these prescriptions using 37 

different pharmacies. The investigation further revealed that Westrick was 

addicted to these medications. 

{¶17} The conditions at issue in this appeal were that Westrick have only 

one pharmacy and that she had to disclose this pharmacy to her supervising 

officer. These conditions were placed upon her when she was initially sentenced 
Case No. 12-10-12 

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to community control in March 2009. In November 2009, she admitted that she 

had used a pharmacy that she did not disclose to her supervising officer, as well as 

a number of other violations of community control. Consequently, her supervision 

was revoked, and she was sent to prison. Westrick was granted judicial release the 

following February and ordered to complete the W.O.R.T.H. program, to undergo 

drug treatment, and to adhere to the same conditions now at issue. 

{¶18} Clearly, the trial court was concerned about Westrick’s abuse of 

drugs and the efforts she had made in order to obtain a large quantity of 

prescription medication, which led to her conviction for deception to obtain 

dangerous drugs. Using 37 different pharmacies enabled her to obtain a large 

amount of prescription pain medication without detection for over two years. 

Thus, requiring that she use only one pharmacy and that she disclose this 

pharmacy to her supervising officer were conditions reasonably related to her 

rehabilitation, to her crime, and to her potential to engage in future criminal 

behavior. 

{¶19} Further, these conditions were not vague, overbroad, or lacking a 

mechanism to ensure compliance. These conditions were capable of being readily 

understood when applying common sense to them, an approach encouraged by the 

Ohio Supreme Court in Jones. A commonsense reading of these conditions 

provided Westrick with fair notice of what conduct was prohibited and what was 

required. In no uncertain terms, Westrick was to use one pharmacy, and she was 

to report the name of this pharmacy to her supervising officer. In addition, she 
Case No. 12-10-12 

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was to use only one medical-care provider and to report her legal status and 

medical status to that provider, the pharmacist, and the supervising officer. The 

patently obvious purpose of all of these conditions was to allow Westrick access to 

medical care and prescription medications if necessary but to do so with full 

disclosure to anyone treating her and with a supervising officer who could monitor 

the situation to detect whether Westrick was engaging in the same pattern of 

behavior that ultimately resulted in her conviction. Further, these conditions were 

not new to Westrick. In fact, her community control was revoked once before 

due, in part, to her use of a pharmacy that she had not disclosed to her supervising 

officer. Therefore, her third assignment of error is overruled. 

Second and Fourth Assignments of Error

{¶20} Westrick asserts in her second assignment of error that the trial court 

erred in finding that there was substantial evidence that she had violated the 

conditions of her judicial release. In her fourth assignment of error, Westrick 

contends that the trial court erred in permitting and relying solely upon 

inadmissible hearsay evidence at the judicial release revocation hearing as to what 

Szeremeta had been told by Jim Kempf, Tisha Bater, Jacob Bowersock, George 

Wolfe, and Amy Mankin in order to find that she had violated the condition that 

she use only one pharmacy. 

{¶21} As previously noted, a judicial-release-revocation hearing is not a 

criminal trial, so the state is not required to establish a violation of the terms of 

judicial release beyond a reasonable doubt. Ryan, 2007-Ohio-4743, at ¶ 7, citing 
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State v. Hylton (1991), 75 Ohio App.3d 778, 600 N.E.2d 821. Instead, the state 

must show “substantial” proof that the offender violated the terms of his or her 

judicial release. See State v. Alexander, 3d Dist. No. 14-07-45, 2008-Ohio-1485, ¶ 

8, citing Ryan. 

{¶22} A trial court’s decision finding a violation of judicial release will not 

be disturbed on appeal absent an abuse of discretion. See Alexander at ¶ 8, citing 

Ryan. An abuse of discretion constitutes more than an error of law or judgment 

and implies that the trial court acted unreasonably, arbitrarily, or unconscionably. 

Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140. When 

applying the abuse-of-discretion standard, a reviewing court may not simply 

substitute its judgment for that of the trial court. Id. 

{¶23} Additionally, although a revocation proceeding must comport with 

the requirements of due process, it is not a criminal proceeding. Gagnon v. 

Scarpelli (1973), 411 U.S. 778, 782. The minimum due process requirements for 

revocation hearings include that the offender have “the right to confront and crossexamine adverse witnesses (unless the hearing officer specifically finds good 

cause for not allowing confrontation).” Ryan, 2007-Ohio-4743, at ¶ 8, citing State 

v. Miller (1975), 42 Ohio St.2d 102, 104, 326 N.E.2d 259, quoting Morrissey v. 

Brewer (1972), 408 U.S. 471, 489. 

{¶24} Furthermore, revocation hearings are not subject to the rules of 

evidence, thus allowing for the admission of hearsay evidence. See State v. 

Patierno, 3d Dist. No. 4-08-08, 2009-Ohio-410, ¶ 16; Evid.R. 101(C)(3). “The 
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rationale for the exception is that, since a * * * revocation hearing is an informal 

proceeding, not a criminal trial, the trier of fact should be able to consider any 

reliable and relevant evidence to determine whether the [defendant] has violated 

the conditions of his [supervision].” Columbus v. Bickel (1991), 77 Ohio App.3d 

26, 36, 601 N.E.2d 61, citing Miller, 42 Ohio St.2d at 106, 326 N.E.2d 259. 

However, hearsay evidence at a revocation hearing can compromise the offender’s 

due process right to confront adverse witnesses. Ryan at ¶ 9, citing Bickel at 37. 

“The introduction of hearsay evidence into a revocation hearing is reversible error 

when that evidence is the only evidence presented and is crucial to a determination 

of a probation violation.” Ryan, 2007 Ohio-4743, ¶ 9, citing State v. Ohly, 166 

Ohio App.3d 808, 816, 853 N.E.2d 675.2

{¶25} In the case sub judice, Weiging testified that he had been assigned to 

supervise Westrick when she was granted judicial release and released from the 

W.O.R.T.H. Center. On June 29, 2010, he went to her home for a home visit and 

scheduled an appointment for her to come to his office on July 14, 2010. Westrick 

came to Weiging’s office as directed, and at that time, Weiging reviewed the terms 

and conditions of supervision with Westrick, which were the same terms and 

conditions she was previously under, to “make sure we’re on the same page.” She 

also signed these terms and conditions after they had reviewed them together. 

Weiging specifically discussed the condition that she was to use one pharmacy and 

 

2

 Although this was a hearing to determine whether Westrick had violated the conditions of her judicial 

release rather than of community control or probation, this court has previously applied the same principles 

applicable to community-control-revocation hearings to judicial-release-revocation hearings. See State v. 

Osborn, 3d Dist. No. 9-05-35, 2006-Ohio-1890. 
Case No. 12-10-12 

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to disclose the name of the pharmacy to him. Westrick then informed him that she 

would be using the pharmacy at Walmart on Cable Road in Lima. She also did 

not have any questions about this condition when Weiging asked if she had any 

questions about it. After July 14, 2010, Weiging did not have any further contact 

with Westrick. 

{¶26} Szeremeta then testified that he had been Westrick’s supervising 

officer when she was initially placed on community control in March 2009. He 

explained to the court that when Westrick was first placed under his supervision, 

she informed him that she would be using the Cable Road Walmart pharmacy. 

Consequently, he provided that pharmacy with a copy of Westrick’s judgment 

entry of conviction and his business card and requested that the pharmacy contact 

him if there was any type of irregularity with her obtaining prescriptions. On July 

20, 2010, he received a voice-mail message from Jim Kempf, a pharmacist at the 

Cable Road Walmart. He testified that Kempf had left the message the previous 

day and asked that Szeremeta return his call to discuss Westrick coming into the 

pharmacy to request that a prescription be refilled earlier than it was due. 

{¶27} Szeremeta testified that when he called the pharmacy, Kempf was 

not working and he spoke to another pharmacist, Tisha Bater, instead. Bater 

informed him that Westrick came to the pharmacy and wanted to refill her 

prescription for Ambien, a Schedule II controlled substance, two or three days 

earlier than prescribed, but the pharmacy refused to do so. Shortly after Westrick 

left the premises, the pharmacy at the Walmart located in Ottawa, Ohio, contacted 
Case No. 12-10-12 

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the Cable Road Walmart and told the pharmacist that Westrick wanted her 

prescription transferred to its location. However, for reasons unknown to 

Szeremeta, the two pharmacies did not transfer the prescription. Bater also told 

Szeremeta that within a few hours, the Cable Road Walmart was contacted by the 

Rite-Aid on Shawnee Road in Lima and asked to transfer Westrick’s prescription 

to its location. Walmart then transferred the prescription to Rite Aid. 

{¶28} Szeremeta testified that he had gone to Rite Aid and spoken with 

Jacob Bowersock, an intern. As he was speaking with Bowersock, Amy Mankin, 

a pharmacist, began speaking with him. While at Rite Aid, Szeremeta provided 

them with a copy of the judgment entry of conviction for Westrick and a release 

form signed by her. He also learned that Westrick had two prescriptions to be 

filled at Rite Aid. Two days later, Szeremeta was contacted by George Wolfe, a 

pharmacist at Rite Aid, who informed him that Westrick had called the pharmacy 

that morning to ask if her prescriptions were ready, and they were. 

{¶29} Szeremeta contacted the local police department for assistance. 

When Westrick arrived at Rite Aid and picked up her two prescriptions, her 

vehicle was stopped by the police and she was placed under arrest by Szeremeta. 

When Szeremeta told her that he was arresting her because of her failure to inform 

her supervising officer that she was using Rite Aid’s pharmacy, she stated that the 

reason she changed was because Rite Aid had a drive-through and Walmart did 

not. Szeremeta further testified that Westrick had not notified anyone at the Adult 

Parole Authority, including Weiging, that she was changing pharmacies. 
Case No. 12-10-12 

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{¶30} Mankin also testified that Westrick had her prescription for Ambien 

transferred to the Rite Aid from the Cable Road Walmart. Westrick told Mankin 

that the reason she needed the transfer and to refill the prescription at Rite Aid was 

because she was going on vacation. The prescription was refilled on Monday, 

July 19, 2010. According to Mankin, Westrick had two additional prescriptions 

filled by Rite Aid the next day, but she did not pick up those prescriptions until 

two days later. 

{¶31} Given this evidence, we do not find that the trial court abused its 

discretion in finding that Westrick had violated her conditions of judicial release, 

namely, that she had used more than one pharmacy and that she had failed to 

disclose that she was using the Rite Aid pharmacy to her supervising officer. 

Weiging’s testimony, which did not include hearsay, showed that on July 14, 

2010, Westrick had told him that she would be using the Cable Road Walmart. 

Mankin’s testimony, exclusive of any hearsay, showed that five days later, 

Westrick had used Rite Aid to fill the prescription she had transferred from the 

Cable Road Walmart and that she had used Rite Aid again to fill two additional 

prescriptions. Szeremeta’s testimony, absent the hearsay evidence included in his 

testimony, demonstrated that he had arrested Westrick immediately after she had 

used Rite Aid to fill two other prescriptions on July 22, 2010, and that she 

admitted to him that she used Rite Aid. Further, both Weiging’s and Szeremeta’s 

testimony, exclusive of any hearsay, established that Westrick had not notified her 
Case No. 12-10-12 

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supervising officer or anyone at the Adult Parole Authority at any point in time 

before her arrest that she was using the Rite-Aid pharmacy. 

{¶32} This evidence conclusively established that Westrick had used more 

than one pharmacy and that she had not disclosed the fact that she was using Rite 

Aid to her supervising officer. Thus, the hearsay evidence that was admitted was 

not the only evidence presented to determine whether Westrick violated her 

conditions of judicial release. The hearsay evidence as to what Szeremeta was 

told by Kempf, Bater, Bowersock, Wolfe, and Mankin was relevant to this 

determination and to the court’s decision as to the consequence of Westrick’s 

violations, because it more fully explained the circumstances surrounding 

Westrick’s transfer, including the timing of her different attempts to have her 

prescription refilled, the number of attempts, her attempt to obtain the refill before 

it was due, and her differing reasons for the transfer. However, it was not crucial 

to the determination of whether she violated a term of her judicial release. 

{¶33} Despite all of this evidence, Westrick asserts that by transferring the 

one prescription to Rite Aid from Walmart, she was using only one pharmacy, 

which was in compliance with this condition of judicial release. We disagree. 

{¶34} The fact that she was attempting to obtain a refill of a prescription 

and then had this prescription transferred, as well as the fact that she told Weiging 

that the Cable Road Walmart was the pharmacy she was using only a few days 

before transferring her prescription from there, demonstrates that she was using 

the Cable Road Walmart while on judicial release. She then chose to use a 
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different pharmacy when she transferred the prescription to Rite Aid. The 

condition at issue was not that she use only one pharmacy at a time but that she 

use only one pharmacy while under judicial release. The undisputed evidence 

showed that Westrick had used two different pharmacies while under a 

community-control sanction that she use only one. 

{¶35} Further, the undisputed evidence showed that Westrick had not 

reported her use of Rite-Aid to her supervising officer. Although she argues that 

the testimony of Szeremeta that some offenders wait until their next scheduled 

meeting with their supervising officers to update them on any changes in their 

lives established that it was acceptable for her to inform Weiging of her use of 

Rite Aid’s pharmacy at her next scheduled meeting, there was no evidence about 

the kinds of changes that are sometimes reported at the next meeting, the 

circumstances under which that might occur, and the conditions of community 

control and/or judicial release for those offenders. Moreover, there was no 

evidence that Westrick intended to inform Weiging of this change at their next 

scheduled meeting or that she even thought that she could wait to inform him until 

this time. Regardless, Westrick had ample time to notify Weiging of this change 

and she chose, for whatever reason, not to do so. Therefore, she also violated this 

condition. 

{¶36} For all of these reasons, the second and fourth assignments of error 

are overruled as well, and the judgment of the Common Pleas Court of Putnam 

County, Ohio, is affirmed. 
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Judgment affirmed. 

ROGERS, P.J., and PRESTON, J., concur.