[Cite as State v. Brown , 2020-Ohio-5140.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT LAKE COUNTY, OHIO

STATE OF OHIO, LAKE COUNTY HUMANE SOCIETY, : O P I N I O N

Plaintiff-Appellee, : CASE NOS. 2020-L-002 - vs - : 2020-L-003 TOM BROWN, et al., : Defendants-Appellants. :

Criminal Appeals from the Paines ville Municipal Court, Case Nos . 2017 CRB 00318 and 2017 CRB 00319.

Jud g ment: Affirmed.

J. Jeffrey Holland , Holland and Muirden, 1343 Sharon-Copley Road, P.O. Box 345, Sharon Center, Ohio 44274 ( For Plaintiff-Appellee )

. Michela J. Huth , P.O. Box 17, Bolivar, Ohio 44612 ( For Defendants-Appellants )

.

THOMAS R. WRIGHT, J. {¶1} Appellants, Tom Brown and Judith Brown, appeal the decision den ying their motion to suppress and finding them in violation of community c ontrol. We affirm. {¶2} Tom and Judith Brown are the owners of Caroline's Kids Pet Resc ue, a cat rescue shelter in Concord, Ohio. In 2018, we affirmed their 24 convictions of cruelty against companion animals. State v. Wolford-Lee , 11th Dist. Lake No. 2017-L-122, 2018- Ohio-5064, appeal not allowed, 155 Ohio St.3d 1421, 2019-Ohio-1421, 120 N.E.3d 868.2 They were both sentenced to 90 days on each count, suspended; f ined $500 on each count, suspended; and ordered to serve 36 months of community c ontrol. {¶3} After an inspection in September 2019, appellee, the Lake Count y Humane Society (LCHS), alleged the Browns had three community control violations. The Browns moved to suppress all evidence from the inspection. The trial court overruled the motion to suppress and found the Browns committed three community cont rol violations. The trial court did not revoke their community control but extended the length to five years and imposed stricter terms. {¶4} The Browns raise five assignments of error, which we address ou t of order. Their second and third assignments assert: {¶5} “[2] The Trial Court abused its discretion when it denied Appel lants' Motion to Suppress the evidence. {¶6} “[3] Lake Humane Society violated Appellant's Fourth Amendment rights

when it entered the front door of Caroline's Kids.” {¶7} The Browns first allege that the LCHS lacked reasonable articul able suspicion to conduct a search of the shelter, and as such, supp ression was warranted. Second, they contend that even if LCHS had consent to enter, th eir initial entry into the

vestibule of the structure nevertheless violated their Fourth A mendment rights because the LCHS did not have permission to enter this part of the buil ding. We disagree with both arguments. {¶8} The Fourth Amendment to the United States Constitution guarante es “[t]he right of the people to be secure in their persons, houses, pape rs, and effects, against unreasonable searches and seizures * * *.” Fourth Amendment, Un ited States3 Constitution. The Ohio Constitution likewise protects against a rbitrary government

invasions. State v. Hoffman , 141 Ohio St.3d 428, 2014-Ohio-4795, 25 N.E.3d 993, ¶ 11, citing State v. Robinette , 80 Ohio St.3d 234, 685 N.E.2d 762 (1997). The touchstone of

both is reasonableness. State v. Michael, 2013-Ohio-3889, 995 N.E.2d 286, ¶ 10 (10th Dist.). {¶9} “‘[S]earches conducted outside the judicial process, without pr ior approval by judge or magistrate, are per se unreasonable under the Fourt h Amendment—subject only to a few specifically established and well-delineated exce ptions.’” (Footnote omitted.) Katz v. United States , 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). {¶10} “When a defendant moves to suppress evidence recovered during a warrantless search, the state has the burden of showing that th e search fits within one of the defined exceptions to the Fourth Amendment's warrant requir ement. Athens v. Wolf , 38 Ohio St.2d 237, 241, 313 N.E.2d 405 (1974).” State v. Banks-Harvey , 152 Ohio St.3d 368, 2018-Ohio-201, 96 N.E.3d 262, ¶ 17-18. {¶11} “A search based on consent is one exception to the Fourth Amend ment's general warrant requirement. State v. Robinette , 80 Ohio St.3d 234, 243, 685 N.E.2d 762 (1997). When the state seeks to rely upon consent to justify a search, it has the burden of establishing that the consent was voluntary and freely given

. Id. ‘The standard for measuring the scope of a suspect's consent under the Fourth Ame ndment is that of “objective” reasonableness—what would the typical reasonable pe rson have understood by the exchange between the officer and the suspect?’ (Citation s omitted.) Florida v.

Jimeno , 500 U.S. 248, 250–51, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991). ” State v. Ferrell , 91 N.E.3d 766, ¶ 12-13 (11th Dist.).4 {¶12} “[V]alid consent can be given by one other than a defendant if the third party granting such consent possessed common authority over or other sufficient relationship to the premises sought to be searched.” State v. Gibson , 164 Ohio App.3d 558, 2005- Ohio-6380, 843 N.E.2d 224, ¶ 16 (4th Dist.), citing U.S. v. Matlock , 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974). {¶13} Moreover, when consent to a search is given, probable cause to conduct a search is not required. State v. Crawford , 14 Ohio App.2d 41, 43, 236 N.E.2d 214, 215 (1st Dist.1968); State v. Gibson , 164 Ohio App.3d 558, 2005-Ohio-6380, 843 N.E.2d 224, ¶ 16 (4th Dist.), citing Schneckloth v. Bustamonte , 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). {¶14} Appellate courts review rulings on a motion to suppress under a

mixed standard of review. State v. Burnside , 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. “[T]he trial court assumes the role of trier o f fact and is therefore in the best position to resolve factual questions and evaluate the cre dibility of

witnesses.” Id. We must accept the trial court's findings of fact if they are supported by competent, credible evidence, and then independently decide whe ther those facts satisfy the applicable legal standards without deference to the trial c ourt's decision. Id. {¶15} Here, the Browns’ terms of community control authorized random inspections of animal shelters owned and operated by them by a veterinarian agreed upon in advance by both parties. The parties disagree as to wh ether there was an agreed upon veterinarian authorized to inspect in September 2019. {¶16} Megan Newkirk, a veterinarian assistant, testified for LCHS. N ewkirk is an employee of LCHS and was present during the September 3, 2019 i nspection of the5 shelter referred to as Caroline’s Kids. Newkirk and Dr. Amy Wo lfgang, a veterinarian, arrived at the shelter to conduct the inspection. {¶17} Newkirk recalled that the shelter has an outside door and an in side door. She said she knocked on the outside door before entering. Virg inia Lee answered the door. Newkirk told Lee that they were there for a random inspe ction. Lee let Newkirk and Wolfgang inside. Newkirk knew Lee and believed she had the authority to let them inside because Lee “helped run the place.” {¶18} Newkirk relayed the following on direct: {¶19} “A. She [Lee] opened the door when we all arrived and said she was going to call Judie [the owner]. So we said okay and gave her five m inutes, and then we reknocked and she opened the door, and we went in. {¶20} “* * * {¶21} “Q. Did she step aside to allow you in? {¶22} “A. Yes. {¶23} “Q. Did she step aside and make room for you to get in? {¶24} “A. Yes. {¶25} “Q. Did you feel that you were invited in at that point? {¶26} “A. Yes.” {¶27} There was no objection to Newkirk and Wolfgang entering on the day of the inspection. Once inside, however, Lee relayed that there was a n issue with Wolfgang being there. While inside, the LCHS attorney told Newkirk that Wolfgang was not supposed to be there, so Wolfgang left. Newkirk was not asked to leave.6 {¶28} On cross-examination Newkirk explained that she thought Wolfgan g was an approved veterinarian under the Browns’ probation terms beca use Wolfgang was on the property and involved with inspecting it in 2018 without di spute by the Browns. {¶29} During a prior inspection in 2018, Newkirk recalls finding seve ral violations, including the Browns caring for too many animals in excess of t he terms of their community control. There were 110 animals in the structure in 2018, but LCHS did not pursue a violation in 2018 because the parties worked together to resolve the issues. LCHS took several of the sick animals and provided educational resources to the Browns to aid them in caring for the animals. {¶30} Danamarie Pannella, an attorney for LCHS, also testified. On t he day of the September 2019 inspection, the Browns’ attorney contacted h er and was objecting to Wolfgang’s presence at the shelter because the Browns do not tr ust her. The two attorneys agreed that Wolfgang would leave and the remaining LC HS representatives could stay. Pannella recalls that the Browns’ lawyer instructe d her not to count the cats

located in the front room because these cats were in a room lea sed to another entity called Purrfect Partners. Pannella advised the Browns’ lawyer that it is the court’s decision whether these cats would be counted for community cont rol violation purposes. {¶31} The defense called Cassandra Hatch, a LCHS humane agent-in-trai ning. Hatch testified that she was with Newkirk and Wolfgang on the d ate of the inspection and that they knocked on the outer door first, but there was no ans wer. They then entered the vestibule and rang the doorbell that was adjacent to the in ner door. Hatch said the doorbell is visible from the outside of the building, and she r ecalls seeing a sign advising

visitors to use the doorbell.7 {¶32} Virginia Lee, a shelter volunteer, testified that she was prese nt during the September 3, 2019 inspection, and she does not recall the LCHS representatives knocking on the outside door before they entered the vestibule. When Lee answered the door, they told her they “needed to come in and inspect the cat s.” {¶33} The trial court overruled the motion to suppress finding that t he search complied with the terms of the Browns’ probation order and alte rnatively that the search

was consensual. {¶34} “‘The standard for measuring the scope of * * * consent under t he Fourth Amendment is that of “objective” reasonableness—what would the typical reasonable person have understood by the exchange between the officer and the suspect?’ (Citations omitted.) Florida v. Jimeno , 500 U.S. 248, 250-51, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991).” State v. Ferrell , 2017-Ohio-9341, 91 N.E.3d 766, ¶ 13 (11th Dist.). {¶35} Here, both Newkirk and Hatch recalled knocking on the outside d oor before entering the vestibule to ring the doorbell. Hatch recalls see ing a sign advising people to

use the doorbell. The doorbell is visible from the outside. O nce Lee answered the door, she did not tell the LCHS representatives to leave, but contact ed Judith and eventually returned and allowed them to enter. Once inside, they were adv ised that Wolfgang was not welcome, so she left. The others, Newkirk and Hatch, were allowed to stay. {¶36} Based on these facts, the typical reasonable person would have understood that the LCHS representatives were permitted to enter and inspe ct the premises based on Lee’s conduct. Their directive excluding Wolfgang while all owing the others to remain inside conveys they were present with consent.8 {¶37} We also find that their initial entrance into the vestibule are a of the building was permissible based on the sign instructing visitors to use t he doorbell that was inside this part of the structure. There was no evidence to the contr ary. {¶38} Accordingly, we agree with the trial court’s conclusion that th e LCHS representatives entered the shelter and remained for the durati on with consent. Thus, we need not address whether the search complied with the Browns ’ community control terms or their argument that the LCHS lacked reasonable articul able suspicion to search

the shelter. {¶39} The Browns’ second and third assigned errors lack merit and are overruled. {¶40} The Browns’ first assigned error contends: {¶41} “[1.] The Trial Court abused its discretion when it barred Dr. Phillip M. Price from testifying as an expert.” {¶42} We review a trial court’s evidentiary rulings for an abuse of d iscretion since trial courts have broad discretion in admitting and excluding e vidence. Guliano v.

Guliano , 11th Dist. Trumbull No. 2010-T-0031, 2011-Ohio-6853, ¶ 18, ci ting State v. Hymore , 9 Ohio St.2d 122, 128, 224 N.E.2d 126 (1967). {¶43} “‘[T]he term abuse of discretion’ is one of art, connoting judg ment exercised by a court, which does not comport with reason or the record.’ State v. Underwood, 11th Dist. No. 2008-L-113, 2009-Ohio-2089, 2009 WL 1177050, ¶ 30, ci ting State v. Ferranto, 112 Ohio St. 667, 676–678, 148 N.E. 362 (1925). * * * [A]n abuse of discretion is the trial court's ‘failure to exerc ise sound, reasonable, and legal decision-making.’ State v. Beechler, 2d Dist. Clark No. 09-CA-54, 2010-Ohio-1900, 2010 WL 1731784, ¶ 62, quoting Black's Law Dictionary (8 Ed.Rev.2004 ) 11. When an9 appellate court is reviewing a pure issue of law, ‘the mere fac t that the reviewing court would decide the issue differently is enough to find error (of course, not all errors are reversible. Some are harmless; others are not preserved for app ellate review). By contrast, where the issue on review has been confined to the di scretion of the trial court, the mere fact that the reviewing court would have reached a dif ferent result is not enough, without more, to find error.’ Id. at ¶ 67.” Ivancic v. Enos , 2012-Ohio-3639, 978 N.E.2d 927, ¶ 70 (11th Dist.). {¶44} The Browns argue that Crim.R. 16 did not apply to their communi ty control revocation proceeding since it is not a criminal proceeding, an d even if it did apply, the rule did not require the exclusion of Dr. Price’s testimony sin ce Crim.R. 16(K) governs trials, not revocation hearings. {¶45} The LCHS, however, contends that the Browns invoked Crim.R. 16 when they made a Crim.R. 16 discovery request, and consequently the trial court’s application of the rule was invited by the Browns. The Browns do not dispu te that they made a Crim.R. 16 discovery request or that the court ordered them to comply with Crim.R. 16. {¶46} Because a community control revocation hearing is not a crimina l proceeding, the rules of criminal procedure and Crim. R. 16 gen erally do not apply to revocation hearings. State v. Griffeth , 5th Dist. Richland No. 10-CA-115, 2011-Ohio4426, ¶ 37, citing State v. Parsons , 2nd Dist. Greene No. 96 CA 20, 1996 WL 665004, *10; accord State v. Shuman , 5th Dist. Stark No. 2009CA00271, 2010-Ohio-3957, ¶ 22. {¶47} And as argued by the Browns, a plain reading of Crim.R. 16(K) c onfirms that it governs trials:10 {¶48} “(K) Expert Witnesses; Reports. An expert witness for either s ide shall prepare a written report summarizing the expert witness’s testi mony, findings, analysis, conclusions, or opinion, and shall include a summary of the exp ert’s qualifications. The written report and summary of qualifications shall be subject t o disclosure under this rule no later than twenty-one days prior to trial, which period may be modified by the court for good cause shown, which does not prejudice any other party. Fai lure to disclose the written report to opposing counsel shall preclude the expert’s testimony at trial.” {¶49} Notwithstanding, Crim.R. 16(A) states: {¶50} “(A) Purpose, Scope and Reciprocity. This rule is to provide a ll parties in a criminal case with the information necessary for a full and fai r adjudication of the facts, to protect the integrity of the justice system and the rights of d efendants, and to protect the well-being of witnesses, victims, and society at large. All dut ies and remedies are subject to a standard of due diligence, apply to the defense and the pr osecution equally, and are intended to be reciprocal. Once discovery is initiated by deman d of the defendant, all parties have a continuing duty to supplement their disclosures. ” {¶51} The prosecutor twice raised this issue on the first day of the revocation hearing at the beginning and at the conclusion when the parties were scheduling a date to continue presenting evidence: {¶52} “[PROSECUTOR]: Your Honor, if I may? There is an issue, I gue ss, that we have to talk about is that [defense counsel] did file a Crim inal Rule 16 request for discovery, which is why I brought witnesses that might be prese nted and evidence and so forth. The State of Ohio inquired * * * [, and w]e received no response from [defense11 counsel], so we were presuming that there will be no evidence o ther than the things that have already been identified by the state.” {¶53} Later that same day, the prosecut or again raised this issue: {¶54} “[PROSECUTOR]: * * * There have been some discussions about so me witnesses and some evidence and so forth that [defense counsel] would like to present. This would be a great opportunity for her to provide that to us , because * * * she [gave] us a Criminal 16 discovery request, we provided her a video, [a nd] we provided her a letter specifically laying out every witness. We provided her a lot of things. We’ve got absolutely nothing back. {¶55} “So I’d like to be able to have those things in a reasonable pe riod of time so we have a chance to look at it, the same way I gave her the cou rtesy of being able to

look. {¶56} “THE COURT: Next Tuesday seems fair enough to me. You know wh o you’re going to be calling. {¶57} “[DEFENSE COUNSEL]: * * * [F]or the record, * * * Criminal Ru le 16 discovery (inaudible) probation rules that the defendant has a right to see the evidence in

advance. {¶58} “[PROSECUTOR]: The letter says Criminal Rule 16. {¶59} “* * * {¶60} “[PROSECUTOR]: Your letter says that. {¶61} “THE COURT: So reciprocal discovery is what [the prosecutor] i s saying, and you have to provide him with the same types of evidence he is providing you with.12 So its ordered that you, by next Tuesday, provide him with item s required under Criminal Rule 16, which you’ve used. {¶62} “[DEFENSE COUNSEL] (Inaudible) okay.” {¶63} On the second hearing date after the state rested, the Browns c alled Dr. Price to testify. They said they wanted to have Price testify as an expert but that he did not create a report. After an objection by the LCHS, the court limited Price to a factual witness and did not allow him to give his medical opinions or a nalyze the medical records. The Browns did evidently list him as a witness in advance of th is second hearing date, but they did not identify him as an expert witness or a veterin arian. Thus, the LCHS argued it would be unfairly prejudiced had Price been permitted to testify without notice that he was an expert in advance of the hearing. The court agr eed, ruling: “You can’t ask him anything that would draw upon his expertise * * * [or t o] make observations about the cats he examined that are the subject of the case, in which he gave no written report * * *.” It allowed him to testify as a fact witness but not an expert. {¶64} In light of these facts, we do not find error. The court order ed the Browns to exchange their evidence with the LCHS in advance of the seco nd hearing date consistent with Crim.R. 16. They did not. Regardless of wheth er Crim.R. 16 applies, the Browns were on notice that the court directed compliance with C rim.R. 16 to regulate the fair exchange of discovery between the parties. Thus, the cour t did not err in excluding the Browns’ expert who had not been identified in advance of th e hearing. State v.

Wolford-Lee , 11th Dist. Lake No. 2017-L-122, 2018-Ohio-5064, ¶ 62, appeal not allowed, 155 Ohio St.3d 1421, 2019-Ohio-1421, 120 N.E.3d 868. The Brow ns’ first assignment lacks merit.13 {¶65} We address the Browns’ fourth and fifth assigned errors collect ively, which

contend: {¶66} “[4.] The Trial Court abused its discretion when it found that the Browns violated the first and second terms of probation. {¶67} “[5.] The Trial Court abused its discretion when it found that the Browns violated the third term of probation.” {¶68} After a two-day hearing, the court found that both Tom and Judi th Brown violated terms one, two, and three of their community control. The Browns raise four arguments claiming the court erred in finding they violated. {¶69} When reviewing c hallenges to the state’s evidence that a commun ity control violation occurred, we review the evidence and assess whether t he state presented substantial proof that a violation occurred. State v. Fears , 2018-Ohio-1468, 110 N.E.3d 951, ¶ 17 (5th Dist.). It is not required to prove the individ ual committed the offense beyond a reasonable doubt. Id. Instead, the standard “is highly deferential to the decision of the trial court and is akin to a preponderance of the evidence burden of proof. See State v. Alderson , 4th Dist. Meigs No. 98CA12, 1999 WL 713594 (Aug. 31, 1999).” Id. {¶70} Therefore, “the state has to introduce evidence tending to show that it was more probable than not that the probationer violated the terms of his or her probation.”

State v. Stockdale , 11th Dist. Lake No. 96-L-172, 1997 WL 663688, *3; State v. Russell , 11th Dist. Lake No. 2008-L-142, 2009-Ohio-3147, ¶ 7. Moreover, appellate courts should not second guess the court’s credi bility determinations, which are issues for the trier of

fact. Fears, supra, at ¶ 17

.14 {¶71} Once a court finds community control was violated, its decision whether to revoke community control is discretionary, and we review that d ecision for an abuse of

discretion. Id. at ¶ 18. {¶72} The Browns’ community control terms state: {¶73} “1. You are not to own, care for or keep any animal in an inhu mane, unsanitary or unlawful manner, or be associated, in any capacit y, directly or indirectly, with any facility which does so, i ncluding Caroli ne Kids Pet Re scue. {¶74} “2. Any animal care or rescue organization which you do associ ate with as a primary operator or owner is subject to random, unannounced i nspections by a veterinarian who may be accompanied by a probation officer and/ or a representative of the Lake County Society. Lake County Humane Society and you sh all agree on such veterinarian within 3 weeks and notify the probation department of his or her identity. If Lake County Humane Society and you cannot agree, then each shal l nominate a person in writing to be filed at the Court forthwith and the Court sha ll appoint. Inspections shall include the right and opportunity to view and copy records conc erning the animals’ care or any other matter connected wi th the facility pertaining to a nimal care provided by it. {¶75} “3. You shall not associate with any facility which cares for more than 105 animals, regardless of its location(s). {¶76} “4. You shall be responsible for the cost of the veterinarian. ” {¶77} The Browns’ first and second arguments challenge their violatio n of the first term of community control, i.e., that they kept and cared for c ats at their facility in an inhumane manner. First, they argue that the LCHS had to prove they acted negligently in caring for the animals. We disagree. Instead, the LCHS had to prove the Browns15 maintained animals in an inhumane, unsanitary, or unlawful mann er consistent with the language employed in their community control terms. There is n o negligence requirement. Thus, their first argument lacks merit. {¶78} Second, the Browns contend the LCHS failed to carry its burden and establish that the animals were inhumanely treated because the state relied on a layperson’s testimony to establish that the animals were sick a nd did not use an expert. {¶79} Inhumane is defined as “extremely cruel; causing unacceptable s uffering.” Black's Law Dictionary (11th Ed. 2019). {¶80} “The decision whether, and to what extent, to credit the testim ony of particular witnesses is within the peculiar competence of the f actfinder, who has seen and

heard the witness.” State v. Rhines , 2d Dist. Montgomery No. 23486, 2010-Ohio-3117, 2010 WL 2643310, ¶ 39. Moreover, because a community control r evocation hearing is not a criminal trial, it has relaxed rules of evidence and proc edure. Columbus v. Bickel, 77 Ohio App.3d 26, 36, 601 N.E.2d 61 (10th Dist.1991). Accord ingly, revocation hearings are not subject to the rules of evidence. State v. Harian , 8th Dist. Cuyahoga No. 97269, 2012-Ohio-2492, ¶ 16. {¶81} Ordinarily, Evid.R. 702 governs and dictates that “a witness ma y testify as an expert if all of the following apply: {¶82} “(A) The witness' testimony either relates to matters beyond th e knowledge or experience possessed by lay persons or dispels a misconcepti on common among lay

persons; {¶83} “(B) The witness is qualified as an expert by specialized knowl edge, skill, experience, training, or education regarding the subject matter of the testimony;16 {¶84} “(C) The witness' testimony is based on reliable scientific, te chnical, or other specialized information. To the extent that the testimony reports the result of a procedure, test, or experiment, the testimony is reliable only if all of t he following apply: {¶85} “(1) The theory upon which the procedure, test, or experiment i s based is objectively verifiable or is validly derived from widely accept ed knowledge, facts, or principles; {¶86} “(2) The design of the procedure, test, or experiment reliably implements the theory; {¶87} “(3) The particular procedure, test, or experiment was conducte d in a way that will yield an accurate result.” {¶88} As stated, Megan Newkirk, a veterinarian assistant for 20 years , testified for LCHS. She is an LCHS employee who was present during the Septe mber 2019 shelter inspection. She saw at least 20 cats with snotty noses, ten to 20 cats with open-mouth breathing, 28 with dental problems or painful tooth disease, an d two to three cats appearing to have ringworm. Newkirk also observed that the ani mals were freely roaming throughout the home even though some of the cats had highly con tagious diseases. Newkirk wanted to take eight of the cats for immediate medical treatment, but the Browns did not allow her to take any. Newkirk was also present during the inspection in 2018 during which she saw many of the same conditions. {¶89} Although Evid.R. 702 compliance was not required, Newkirk’s tes timony about her credentials established she had ample experience in c aring and helping to treat and diagnose animals. Her testimony and credentials were befor e the court for it to consider when assessing the evidence. Moreover, the Browns did not object to her17 testimony on this basis at the hearing. Thus, they waive all b ut plain error. A plain error finding will lie in “extremely rare cases where exceptional cir cumstances require its application to prevent a manifest miscarriage of justice ** *.” State v. Morgan , 153 Ohio St.3d 196, 2017-Ohio-7565, 103 N.E.3d 784. {¶90} Here, the trial court believed Newkirk’s account detailing the conditions found in the shelter and held that there was “convincing testim ony that up to 48 of the 105 plus animals housed at the facility suffered from neglect of va rious conditions and were in need of veterinary care.” Based on the foregoing, there was evidence showing that it was more probable than not that the Browns kept certain cats in an inhumane condition based on Newkirk’s testimony that they were suffering from ailm ents requiring urgent

veterinarian care. {¶91} Thus, there is no plain error and their second argument lacks m erit. We affirm the court’s decision finding the Browns violated the fir st condition of their community

control. {¶92} The Browns’ third argument claims the court erred by finding th ey violated the second term of their community control requiring them to co operate with LCHS’s random inspections. The Browns argue that the parties never ha d an agreed upon veterinarian, and therefore, term two of their community contro l regarding inspections did not apply at the time of the 2019 inspection. {¶93} In support, the Browns argue that the LCHS 2018 shelter inspect ion that was referenced during the revocation hearing and construed by t he trial court as the Browns waiving their right to agree to a veterinarian was an in spection conducted under their appeal bond conditions, and not their terms of community control. Consequently,18 they assert the 2018 inspection that was led by Wolfgang has no bearing on whether the Browns consented to Wolfgang as the agreed upon veterinarian co nsistent with the terms of their community control. {¶94} As they allege, the Browns’ sentence was stayed pending the dir ect appeal of their convictions from approximately October 2017 until Dece mber 17, 2018 when we affirmed their convictions. Thus, before December 2018, they w ere not subject to the community control terms in their sentencing judgment. Instead, the Browns claim the 2018 inspection was conducted pursuant to the terms in their ap peal bond. The LCHS does not challenge this contention. The terms of the appeal bo nd are not before us. {¶95} The trial court found that the Browns failed to cooperate with inspections by “failing to timely agree to a veterinarian in a timely fashion as required by Term No. 2. After agreeing to Dr. Wolfgang in the 2018 annual inspection, t hey unjustifiably reneged on his inspection efforts on September 3, 2019. They failed to fully cooperate with the random inspections * * *.” {¶96} We disagree with the conclusion that Browns consented to Wolfga ng as the agreed upon veterinarian under their community control terms ba sed on Wolfgang’s prior 2018 inspection. The Browns’ community control conditions did n ot yet apply. {¶97} However, we agree with the court’s conclusion that the Browns f ailed “to timely agree to a veterinarian in a timely fashion as required by Term No. 2.” As stated, term two of their community control required the Browns to agre e on a veterinarian with the LCHS to perform the inspections within three weeks. If the parties did not agree, term two required each to “nominate a person in writing to be filed at the Court forthwith and the Court shall appoint * * *.” Because the Browns and the LCH S never had an agreed19 upon veterinarian, the Browns were obligated to submit a writte n nomination to the court three weeks after their community control commenced. They did not, and as such, they were not in compliance with their community control. Thus, the ir third argument lacks

merit. {¶98} The Browns fourth and final argument contends they did not viol ate the third term of their community control, which precludes them from asso ciating with a facility that

houses more than 105 animals. {¶99} The parties stipulated there were 113 cats in the building. At the beginning of the probation violation hearing, however, the Browns’ attorn ey explained that the eight cats in the front porch area in excess of the 105 cats the Brow ns were allowed to have were not their cats. Instead, these cats were the property of another entity, which leased this porch area. {¶100} The Browns argue they did not violate this condition because th e eight additional cats at the shelter during the September 2019 inspec tion in excess of the 105- animal limit belonged to Purrfect Partners, a separate entity t hat the Browns do not own. The Browns claim they leased this space for its separate and in dependent care of dying cats. And absent these additional eight cats, the Browns did n ot exceed their 105-animal

limit. {¶101} Jacqueline Childers testified that she, as a Purrfect Partners board member, leased the porch area from the Browns. Childers said her eight cats are co nfined to one room. Judith Brown testified that they do not provide food or veterinary care for the cats owned by Purrfect Partners.20 {¶102} However, the written lease agreement does not require Purrfect Partners to pay the Browns rent. Childers testified that she does not pay for the space in cash but paid them by doing errands or services on their behalf. Neither party to the lease, however, maintained records of the services Childers performed. Purrfect Partners likewise did not pay for utilities. {¶103} The trial court judge responded, “I’m not buying that. * * * Th is was part of the premises.” {¶104} “[T]he weight to be given the evidence and the credibility of t he witnesses are primarily for the trier of the facts.” State v. DeHass , 10 Ohio St.2d 230, 231, 227 N.E.2d 212 (1967). The trial court’s decision makes it clear t hat she did not give much weight to Childers’ testimony. Instead, the court determined t hat the lease agreement was a contrived way for the Browns to circumvent their communit y control conditions and

to care for more cats at their shelter. {¶105} We agree that the LCHS presented evidence showing that it was m ore probable than not that the Browns had more than 105 cats at the ir shelter at the time of the September 2019 inspection. Thus, this argument lacks merit , and the Browns’ fourth and fifth assignments lack merit. {¶106} The trial court’s decision is affirmed.

TIMOTHY P. CANNON, P.J., MATT LYNCH, J.,

concur.