 Pursuant to Ind.Appellate Rule 65(D), this
 Memorandum Decision shall not be
 regarded as precedent or cited before any
 court except for the purpose of                                            Aug 08 2014, 10:28 am
 establishing the defense of res judicata,
 collateral estoppel, or the law of the case.

ATTORNEY’S FOR APPELLANT:                           ATTORNEY FOR APPELLEE:

R. BRIAN WOODWARD                                   MARK A. BATES
Woodward & Blaskovich, LLP                          Schererville, Indiana
Merrillville, Indiana

MELISSA L. ROHRER
Merrillville, Indiana

                               IN THE
                     COURT OF APPEALS OF INDIANA

IN RE; THE PATERNITY OF BKS,                        )
                                                    )
CSS,
       Mother/Appellant,                            )
                                                    )
               vs.                                  )      No. 45A03-1311-JP-463
                                                    )
RSK,                                                )
                                                    )
       Father/Appellee.                             )

                        APPEAL FROM THE LAKE CIRCUIT COURT
                        The Honorable Michael A. Sarafin, Special Judge
                               Cause No. 45C01-1210-JP-003

                                          August 8, 2014

                MEMORANDUM DECISION - NOT FOR PUBLICATION

FRIEDLANDER, Judge
         C.S.S. (Mother) appeals the trial court’s order awarding R.S.K. (Father) custody of

the parties’ four-year-old daughter, B.K.S. (Child). Mother raises several arguments on

appeal, which we consolidate and restate as the following issue: Did the trial court abuse

its discretion in awarding custody to Father?

         We affirm.

         At all times relevant to this appeal, Mother was married to and living with R.S.

(Husband). Mother and Father were coworkers who engaged in an extramarital affair

from 2003 until 2008. As a result of the affair, Mother became pregnant and gave birth

to Child in 2009. During her pregnancy, Mother continued to have frequent contact with

Father and Father assisted her with the pregnancy and accompanied her to medical

appointments. Father visited Mother and Child at the hospital after Child’s birth, and

Father paid the uninsured portion of Mother’s and Child’s medical bills relating to the

birth.    After Child’s birth, Mother and Father had DNA testing performed, which

confirmed that Father was Child’s father. Mother and Father agreed not to tell Husband

the truth of Child’s parentage and Father continued to assist Mother with Child’s care.

For the first few months of Child’s life, Father had significant contact with her, including

frequent unsupervised visitation at his home.

         At some point after Child’s birth, Mother and Father had a disagreement about

Father’s continued role in Child’s life. In May 2010, Father retained counsel and filed a

petition to establish paternity. Additionally, in accordance with the local rules of court,

Father’s counsel sent a letter to Mother and Husband concerning issues related to Child in

July 2010. A few days later, Mother filed a petition for an ex parte order of protection
against Father, in which she alleged that she had become pregnant after Father had raped

her in September of 2008. Mother also alleged that Father had attempted to rape her on

another occasion and that he had stalked and harassed her. After filing the petition,

Mother reported the alleged rape and attempted rape to the police.

       Detective Christopher Matanovich of the Hammond Police Department

investigated Mother’s accusations against Father. Based on the nature and circumstances

of Mother’s allegations, Detective Matanovich had doubts concerning Mother’s

truthfulness. Detective Matanovich conducted a recorded interview of Mother on July

15, 2010. During the interview, Mother recanted her allegations against Father. Mother

admitted that she had engaged in a long-term sexual relationship with Father and stated

that she was afraid of Husband’s reaction to her affair and its effect on her marriage. As

a result of her admittedly false allegations against Father, criminal charges were filed

against Mother in Lake County. Additionally, Father filed a civil lawsuit against Mother.

Neither of these matters had been resolved at the time of the final hearing in this matter.

       Father filed a petition for custody on July 30, 2010. In October 2010, after DNA

testing was conducted and the parties entered into a stipulation, the trial court established

paternity in Father. Mother was granted temporary custody of Child and Father was

awarded parenting time in accordance with the Indiana Parenting Time Guidelines.

Additionally, the trial court appointed Dr. Marguerite Rebesco as a custodial evaluator.

Dr. Rebesco’s report was filed on May 21, 2012. A two-day hearing was held on July 29

and 30, 2013. On October 30, 2013, the trial court entered a twenty-five page order

                                             3
awarding sole legal and physical custody to Father, granting Mother parenting time, and

granting Father’s request to change Child’s last name. Mother now appeals.

       “Child custody determinations are within the discretion of the trial court and will

not be disturbed except for an abuse of discretion.” Truelove v. Truelove, 855 N.E.2d

311, 314 (Ind. Ct. App. 2006). Accordingly, “[w]e will not reverse unless the trial

court’s decision is against the logic and effect of the facts and circumstances before it or

the reasonable inferences drawn therefrom.” Id. Additionally, where, as here, the trial

court enters special findings of fact and conclusions thereon pursuant to Trial Rule 52(A),

we apply a two-tiered standard of review. In re Paternity of C.S., 964 N.E.2d 879 (Ind.

Ct. App. 2012), trans. denied. First, we consider whether the evidence supports the

findings, and second, whether the findings support the judgment. Id. The trial court’s

findings and conclusions will be set aside only if they are clearly erroneous—that is,

where a review of the record leaves us with a firm conviction that a mistake has been

made. In re Paternity of D.T., 6 N.E.3d 471 (Ind. Ct. App. 2014). In conducting our

review, we will neither reweigh the evidence nor judge the credibility of witnesses. Id.

Instead, we will consider only the evidence favorable to the trial court’s judgment. Id.

“To the extent that the judgment is based on erroneous findings, those findings are

superfluous and are not fatal to the judgment if the remaining valid findings and

conclusions support the judgment.” J.M. v. N.M., 844 N.E.2d 590, 599 (Ind. Ct. App.

2006) (quoting Lasater v. Lasater, 809 N.E.2d 380, 397 (Ind. Ct. App. 2004)) trans.

denied.

                                             4
       Mother first takes issue with the trial court’s special finding number 97, which

provides as follows:

       Throughout the provisional period and despite a provisional award of joint
       legal custody, Mother denied Father basic information about [Child’s]
       medical condition and care; failed to consult or include him in any way
       upon issues related to [Child’s] education; and, and [sic] failed to provide
       Father with a health insurance card for [Child] until the second day of the
       final hearing.

Appellant’s Appendix at 40. Mother does not dispute that she withheld information from

Father; instead, she challenges the portion of the court’s finding indicating that Father

had been provisionally awarded joint legal custody of Child. In support of her argument,

Mother notes that the trial court’s October 20, 2010 order provided that Mother was

“granted temporary custody of [Child].” Id. at 21. According to Mother, this order

“clearly recognized Mother not only as physical but also legal custodian of [Child].”

Appellant’s Brief at 11. But even if we assume that Father was not provisionally awarded

joint legal custody and the trial court’s finding to that effect was clearly erroneous,

reversal is not warranted because the remaining valid findings and conclusions support

the trial court’s judgment awarding sole physical and legal custody to Father.

       I.C. § 31-14-13-2 (West, Westlaw current with all 2014 Public Laws of the 2014

Second Regular Session and Second Regular Technical Session of the 118th General

Assembly) provides that “[t]he court shall determine custody in accordance with the best

interests of the child.”   In making the best-interests determination, there is not a

presumption favoring either parent. Id. Instead, the court must consider all relevant

factors, including the following non-exhaustive list:

                                             5
       (1) The age and sex of the child.
       (2) The wishes of the child’s parents.
       (3) The wishes of the child, with more consideration given to the child’s
       wishes if the child is at least fourteen (14) years of age.
       (4) The interaction and interrelationship of the child with:
              (A) the child’s parents;
              (B) the child’s siblings; and
              (C) any other person who may significantly affect the child’s best
              interest.
       (5) The child’s adjustment to home, school, and community.
       (6) The mental and physical health of all individuals involved.
       (7) Evidence of a pattern of domestic or family violence by either parent.
       (8) Evidence that the child has been cared for by a de facto custodian, and if
       the evidence is sufficient, the court shall consider the factors described in
       section 2.5(b) of this chapter.

Id.

       In its October 30, 2013 custody order, the trial court concluded that an award of

sole legal and physical custody to Father was in Child’s best interests. The order is 25

pages long and comprises over 150 findings and conclusions. The order is far too lengthy

to reproduce in full here, but we will summarize its most salient points. The trial court

found that most of the factors listed in I.C. § 31-14-13-2 were not significant in this case.

For example, the trial court concluded that there was no credible evidence concerning

Child’s preferences concerning custody, and that there was no evidence of a pattern of

domestic violence or any physical or psychological conditions that would impair

Mother’s or Father’s ability to care for Child. Instead, the trial court placed particular

emphasis on the parties’ acrimonious relationship and inability to communicate civilly, as

well as Mother’s expressed wish for Father to have no relationship with Child. The court

found that Mother “does not have any intention or wish to cooperatively work with

Father in any way when it comes to raising [Child] and in fact wishes that Father would

                                             6
not have any role whatsoever in [Child’s] life.” Appellant’s Appendix at 38. The court

found that Mother “has not taken any actions to promote Father’s relationship with

[Child]; has encouraged [Child] to refer to Husband as her father and not Father; and,

manifested an intention to do no more than that which is ordered of her by this Court.”

Id. at 40. The court also found that Husband had a hostile attitude toward Father and was

excessively involved in Mother’s communications with Father and parenting-time

exchanges. Although acknowledging that Father was partially to blame for his hostile

relationship with Husband, the court found that “Father is more willing to work with

Mother to cooperate in parenting [Child] and is more likely to work cooperatively with

Mother” if awarded custody. Id. at 14.

      The trial court also found that “[t]he evidence did not support Mother’s

contentions that Father raped or attempted to rape her. Still, Mother and her Husband

cling to a theory that Father raped or coerced Mother into a sexual relationship and that

[Child’s] conception was a result.” Id. at 39. The trial court found that “[t]he danger of

exposing [Child] to Mother’s and Husband’s on-going belief that [Child] is the product of

Father[’s] rape of Mother is, as Dr. Rebesco testified, readily apparent and will cause

irreparable an[d] inimical damage to [Child’s] relationship with Father.” Id.

      In sum, the trial court found that the parties had a highly contentious relationship

and were unable to communicate through regular channels. Mother had no intention of

parenting cooperatively with Father and displayed a clear desire for Husband to replace

Father in the paternal role. Perhaps most importantly, the trial court found that Father

was more likely to parent cooperatively with Mother. Although the trial court noted that

                                            7
Mother had been child’s primary caregiver since her birth, it found that this circumstance

was due to Mother’s refusal to allow Father contact with Child beyond the minimum,

court-ordered Parenting Time schedule, not a lack of interest or ability on Father’s part.

The court also noted that by perpetuating the idea that Child was conceived as a result of

a rape perpetrated by Father, Mother was endangering Child’s emotional well-being and

relationship with Father.      Additionally, the trial court noted that Dr. Rebesco

recommended awarding custody to Father.          These findings were supported by the

evidence and more than sufficient to support the trial court’s judgment awarding sole

legal and physical custody to Father. Thus, even if the trial court’s finding concerning

the existence of a provisional order awarding Father joint legal custody was clearly

erroneous, reversal is not required because the judgment is supported by the remaining

valid findings. In light of the findings summarized above, as well as numerous other

findings that are too lengthy to reproduce here, we are confident that the trial court would

have reached the same result had it not made the allegedly erroneous finding concerning

joint legal custody.

       Mother also objects to the trial court’s special finding number 93, which provides

as follows:

       Mother’s contention that she had been the only caregiver for [Child] does
       not, in and of itself, constitute sufficient grounds for her to be awarded
       physical custody of [Child]. Mother’s contention ignores the fact that she
       has not afforded Father any meaningful contact with [Child] other than that
       which is ordered by this Court.

Appellant’s Appendix at 39. Mother does not dispute that this finding was supported by

the evidence. Instead, she argues that the trial court erred by penalizing Mother for

                                             8
complying with the court-ordered parenting-time schedule.1 We disagree with Mother’s

premise. Special finding number 93 does not establish that the trial court was punishing

Mother for following a court order; instead, it was an explanation of the trial court’s

reasons for concluding that Mother’s role as the primary caregiver, standing alone, was

insufficient to convince the trial court that awarding custody to Mother was in Child’s

best interest. The finding also reflected the trial court’s overall belief that Mother was

inflexible with regard to parenting time and unwilling to help foster a positive

relationship between Father and Child.

        Mother also complains that special finding number 93 was inconsistent with the

trial court’s ultimate parenting-time order. Specifically, Mother claims that the trial court

expressed disapproval for Mother’s refusal to allow Father additional parenting time, but

after awarding sole legal and physical custody to Father, then “restricted Mother’s

additional parenting time . . . by denying the opportunity for additional parenting time as

permitted by the [Indiana Parenting Time Guidelines]” Appellant’s Brief at 13. Mother

fails to note, however, that she was awarded parenting time beyond that recommended in

the Guidelines. Specifically, she was granted parenting time on alternating “weekends”,

with the weekend defined at Thursday at noon until Sunday at noon.                            Appellant’s

Appendix at 43. Mother was also awarded mid-week visitation on Thursdays from 9:00

a.m. until 3:00 p.m. every week that she did not have weekend visitation. For children

Child’s age, the Guidelines recommend regular parenting time on alternating weekends

1
  Mother also argues that the trial court attributed insufficient weight to its finding that Mother had been
Child’s primary caregiver up until the time of the hearing. This is nothing more than a request to reweigh
the evidence, which we will not do on appeal.

                                                     9
from Friday at 6:00 p.m. until Sunday at 6:00 p.m., with a four-hour mid-week visit. Ind.

Parenting Time Guideline II(D). Moreover, the trial court specifically noted that the

parenting time schedule set forth minimum requirements and the parties were free to

agree to additional time. We note that the “Opportunity for Additional Parenting Time”

set forth in the Guidelines, which is often referred to as the right of first refusal, provides

that a parent who needs child care “shall first offer the other parent the opportunity for

additional parenting time, if providing the child care by the other parent is practical

considering the time available and the distance between residences.” Ind. Parenting Time

Guideline I(C)(3).        The trial court concluded that the Opportunity for Additional

Parenting Time should not be implemented in this case because it “requires a level of

communication that the parties do not possess[.]” Appellant’s Appendix at 43. This

conclusion was amply supported by the evidence and not an abuse of discretion.2 See In

re Paternity of G.R.G., 829 N.E.2d 114 (Ind. Ct. App. 2005) (noting that this court will

reverse a trial court’s resolution of a parenting-time issue only when the trial court

manifestly abuses its discretion and there is no rational basis for its decision).

        Next, Mother argues that the trial court abused its discretion by drawing adverse

inferences against her based on her invocation of her Fifth Amendment privilege against

self-incrimination during the evidentiary hearing. Specifically, Mother invoked her rights

when asked whether she had been in a long-term sexual relationship with Father and

whether Father had ever raped, attempted to rape, or otherwise physically harmed her.

2
  For the same reason, we also reject Mother’s argument that the trial court erred by requiring the parties
to communicate solely by text message or e-mail.

                                                    10
       Our Supreme Court recently discussed the impact of a witness’s invocation of his

or her privilege against self-incrimination in civil proceedings in Hardiman v. Cozmanoff,

4 N.E.3d 1148, 1152 (Ind. 2014):

       It is a bedrock principle of our criminal justice system that “no person ...
       shall be compelled in any criminal case to be a witness against himself.”
       U.S. Const. amend. V; see also Ind. Const. art. 1, § 14 (“No person, in any
       criminal prosecution, shall be compelled to testify against himself.”). The
       Fifth Amendment, incorporated to the States by the Fourteenth
       Amendment, Malloy v. Hogan, 378 U.S. 1, 6, 84 S.Ct. 1489, 12 L.Ed.2d
       653 (1964), “not only protects the individual against being involuntarily
       called as a witness against himself in a criminal prosecution but also
       privileges him not to answer official questions put to him in any other
       proceeding, civil or criminal, formal or informal, where the answers might
       incriminate him in future criminal proceedings.” Lefkowitz v. Turley, 414
       U.S. 70, 77, 94 S.Ct. 316, 38 L.Ed.2d 274 (1973). A civil defendant who
       chooses to avail himself of this protection, however, does so at his peril:
       “the Fifth Amendment does not forbid adverse inferences against parties to
       civil actions when they refuse to testify in response to probative evidence
       offered against them.” Baxter v. Palmigiano, 425 U.S. 308, 318, 96 S.Ct.
       1551, 47 L.Ed.2d 810 (1976); see also Morgan v. Kendall, 124 Ind. 454, 24
       N.E. 143, 145 (1890) (holding a defendant’s invocation of his Fifth
       Amendment privilege during his trial testimony “was a matter proper to be
       considered by the jury”).

(footnote omitted).

       In this case, the trial court explicitly stated that it had “draw[n] adverse inferences

against Mother based upon her invocation of the Fifth Amendment at the Final Hearing.”

Appellant’s Appendix at 38. Mother acknowledges that the trial court was entitled to

draw an adverse inference, but argues that the inference was not appropriately limited.

Mother asserts that the only appropriate inference the trial court could have drawn is that

Mother’s relationship with Father was consensual. According to Mother, “[w]hat seems

apparent from the Court’s findings, is that the Court drew adverse inferences in all areas

                                             11
of Mother’s testimony rather than as it pertains solely to the consensual relationship.”

Appellant’s Brief at 16. As an initial matter, we note that the inference to be drawn by

the trial court is not strictly limited to a finding that Mother’s relationship was

consensual. The trial court could also reasonably infer that Mother had falsely accused

Father of rape at the time she filed the petition for a protective order and had lied to Dr.

Rebesco during the custodial evaluation when she told her that Father had raped her. The

court could also reasonably infer that the continued belief of Husband and his family

members that Father had raped or coerced Mother was unfounded. In any event, we see

nothing in the trial court’s order supporting Mother’s bald assertion that the trial court

must have drawn inferences against Mother in all areas of her testimony.            As we

explained above, the trial court’s conclusion that an award of sole legal and physical

custody to Father was in Child’s best interests was supported by numerous findings, most

of which Mother does not challenge on appeal.

       Finally, Mother argues that the trial court abused its discretion by awarding

custody to Father in order to punish Mother for making false rape allegations against

Father rather than considering the best interests of Child. Mother’s argument is not

supported by the evidence. As we have explained, the trial court’s custody determination

is amply supported by the evidence. To the extent the trial court discussed Mother’s false

claims of rape, it was in the context of explaining the acrimonious relationship between

the parties and the negative effect exposure to such claims would have on Child. The

trial court applied the appropriate statutes and expressly concluded that an award of sole

legal and physical custody to Father was in Child’s best interests. We will not second-

                                            12
guess the trial court’s conclusions in this regard based solely on Mother’s unsupported

allegations that the trial court was motivated by improper considerations.3

        Judgment affirmed.

MATHIAS, J., and PYLE, J., concur.

3
  Mother also argues that in the event that this court reverses the trial court’s custody determination, it
should also remand for reconsideration of the trial court’s order that Child’s surname be changed to
Father’s. Because we affirm the trial court’s custody decision in all respects, we need not address this
argument.

                                                    13


899 F.Supp. 972 (1995)
Luis VELASQUEZ, Plaintiff,
v.
John P. O'KEEFE, et al., Defendants.
No. 93-CV-1449.
United States District Court, N.D. New York.
October 16, 1995.
Luis Velasquez, Great Meadow Correctional Facility, Comstock, NY, Pro Se.
Office of the Attorney General, Department of Law, Deirdre Roney, Asst. Atty. Gen., Albany, NY, for Defendants.

MEMORANDUM-DECISION And ORDER
McAVOY, Chief Judge.

I. BACKGROUND
Plaintiff Luis Velasquez, a pro se state prison inmate, commenced this action by filing *973 a complaint on November 17, 1993. Plaintiff raises five causes of action pursuant to 42 U.S.C. § 1983 against defendants John P. O'Keefe and Peter L. Tschirky, corrections officers at the Ulster Correctional Facility in Napanoch, New York, where plaintiff was incarcerated, Charles Lochrow, deputy superintendent for security at Ulster, and James Walsh, superintendent of the facility. Plaintiff alleges that, as a result of an April 7, 1993, incident at Ulster, (1) he was the victim of excessive force; (2) he received inadequate medical care; (3) his access to the courts was impeded; (4) defendant O'Keefe issued him a false misbehavior report; and (5) defendant Lochrow failed to call witnesses plaintiff had requested at a hearing on the misbehavior report.
This matter was referred by this Court to the Hon. Ralph W. Smith, Jr., United States Magistrate Judge, for a report and recommendation pursuant to a Standing Order dated August 2, 1985. Both plaintiff and defendants have raised objections to the Report-Recommendation issued by Judge Smith on June 7, 1995, which details the factual background of plaintiff's claims. As a result, the Court will review the record de novo. Plaintiff also has moved for a fourth time for the appointment of counsel pursuant to 28 U.S.C. § 1915(d).

II. DISCUSSION
After examining the record, the Court adopts the Report-Recommendation for the reasons stated therein with the following additions.

A. SUPERVISORY LIABILITY
Plaintiff is correct that "a defendant who occupies a supervisory position may be found personally involved in the deprivation of a plaintiff's constitutionally protected liberty interests in several ways." Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994). First, the supervisor may have failed to remedy the wrong after learning of the violation through a report or appeal. Second, the supervisor may be liable for creating or continuing a policy or custom under which unconstitutional practices occurred. Third, the supervisor may have been grossly negligent in managing subordinates who caused the unlawful condition or event. Id.; Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir.1986). Finally, supervisory liability may be imposed "where an official demonstrates `gross negligence' or `deliberate indifference' to the constitutional rights of inmates by failing to act on information indicating that unconstitutional practices are taking place." Wright, 21 F.3d at 501.
However, consistent with the Report-Recommendation, plaintiff has failed to allege specifically any action by defendant Walsh that would fall into any of these supervisory liability categories. Defendant does argue that Walsh was personally involved in the incident of April 7, 1993, as required under Section 1983. See Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir.1991). But because he has failed to allege exactly how Walsh was involved, defendant appears to rely on what would be better characterized as a theory of respondent superior. As a result, the Court finds that the Complaint should be dismissed as against defendant Walsh. Al-Jundi v. Estate of Rockefeller, 885 F.2d 1060, 1065 (2d Cir.1989).

B. EXCESSIVE FORCE
The Court notes defendants' reference to the Hudson case, where the Supreme Court ruled that "extent of the injury suffered by an inmate is one factor that may suggest `whether the use of force could plausibly have been thought necessary.'" Hudson v. McMillian, 503 U.S. 1, 7, 112 S.Ct. 995, 999, 117 L.Ed.2d 156 (1992). However, defendants essentially argue that the extent of plaintiff's injuries should be the only factor considered here. From defendants' perspective, because plaintiff's apparent injuries were slight, even de minimis, the officers could not have used excessive force as a matter of law. The Court finds that such an interpretation conflicts with the proper standard, because "[it] would permit any physical punishment, no matter how diabolic or inhuman, inflicting less than some arbitrary quantity of injury." Hudson, 503 U.S. at 9, 112 S.Ct. at 1000. The Report-Recommendation was correct to deny summary judgment for defendants on this issue.

*974 C. APPOINTMENT OF COUNSEL

In deciding whether to appoint counsel, a court should first determine whether the indigent's position seems likely to be of substance. Sawma v. Perales, 895 F.2d 91, 95 (2d Cir.1990). If the claim meets this threshold requirement, the court then should consider a number of other factors. Among these are
[t]he indigent's ability to investigate the crucial facts, whether conflicting evidence implicating the need for cross-examination will be the major proof presented to the fact finder, the indigent's ability to present the case, the complexity of the legal issues, and any special reason ... why appointment of counsel would be more likely to lead to a just determination.
Id. None of these factors are controlling in any given situation, however, so each case must be decided on its own facts. Hodge v. Police Officers, 802 F.2d 58, 61 (2d Cir.1986).
The Court believes that the only remaining dispute in this casewhether defendants assaulted plaintiffis not overly complex. Moreover, the record indicates that plaintiff has an ability to learn and implement legal arguments. While it is possible that there will be conflicting evidence requiring cross-examination at the trial of this matter, this factor alone is not determinative of a motion for appointment of counsel. See Jackson v. Francis, 646 F.Supp. 171, 172 (E.D.N.Y.1986). Many pro se litigants have handled similar Section 1983 claims with considerable proficiency, and the Court finds no indication that plaintiff will be unable to do so here. As a result, plaintiff's motion for appointment of counsel must be denied.

III. CONCLUSION
For all the foregoing reasons, summary judgment is GRANTED in favor of defendants, except in regard to plaintiff's claim of excessive force and assault. Plaintiff's motion for appointment of counsel is DENIED without prejudice to renew at some future time if circumstances so warrant.
IT IS SO ORDERED.


[Cite as State v. Wiley, 2014-Ohio-5766.]

                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                      PORTAGE COUNTY, OHIO

STATE OF OHIO,                                  :       OPINION

                 Plaintiff-Appellee,            :
                                                        CASE NO. 2013-P-0067
        - vs -                                  :

JAIMIE R. WILEY,                                :

                 Defendant-Appellant.           :

Criminal Appeal from the Portage County Municipal Court, Ravenna Division.
Case No. R 2012 CRB 1944.

Judgment: Affirmed.

Victor V. Vigluicci, Portage County Prosecutor, and Kristina Drnjevich, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).

Neil P. Agarwal, 3766 Fishcreek Road, Suite 289, Stow, OH              44224-4379 (For
Defendant-Appellant).

TIMOTHY P. CANNON, P.J.

        {¶1}     Appellant, Jaimie R. Wiley, appeals the judgment of the Portage County

Municipal Court, Ravenna Division, finding her guilty of R.C. 2921.33, resisting arrest, a

misdemeanor of the second degree. Based on the following, we affirm the trial court’s

judgment.

        {¶2}     Deputy Leonard Vella of the Portage County Sheriff’s Office responded to

a call at Countryside Estates, Lot 82, a trailer park located in Portage County. When
Deputy Vella arrived at Lot 82, no one was there; however, appellant was directly

across the road at Lot 66. Appellant was accompanied by neighbor Julie Hutson and

her friend, Robert Grove. Appellant advised Deputy Vella that while she was at Ms.

Hutson’s home, the park manager, Toni, and Toni’s husband drove by in a white vehicle

and called appellant “a fat bitch.” Behind the vehicle was the park manager’s daughter,

Megan, who called appellant “a bitch.”      There were no witnesses to this incident.

Notably, Deputy Vella had previously visited the trailer park that same day regarding an

incident between appellant and Toni.

      {¶3}   Deputy Vella asked appellant to make a written statement regarding the

incident before he questioned Toni, her husband, and Megan. Appellant stated that she

wished to make such a statement.         Deputy Vella testified that it took appellant

approximately one-half hour to complete her written statement.         During this time,

appellant repeatedly swore at Deputy Vella; called Deputy Vella “an asshole”; and was

very hostile and agitated, which increased throughout his contact with appellant. At one

point, appellant told Deputy Vella to stay the “F” away from her. This encounter was

audio recorded, which was admitted into evidence.

      {¶4}   Deputy Vella testified that when he informed appellant she was under

arrest for disorderly conduct, appellant behaved in the following manner:

             She refused to give us her hands. We tried to physically get her
             hands behind her back. She clenched her fists and tensed and
             kept them in front of her so we couldn’t get her. And then when we
             tried to get her hands behind her back she started to turn towards
             us and we started to spin, kind of walk around the porch a little bit,
             and then she was escorted to the ground to effect the arrest.

      {¶5}   Ms. Hutson testified that when appellant was notified she was under arrest

for disorderly conduct, appellant did not comply with the deputies, but struggled and

                                           2
swore at them.     Ms. Huston described appellant’s behavior as, “just fighting, just

resisting, fighting * * * giving them a very rough time just to put a set of cuffs on her

hands.”

       {¶6}   Deputy Vella testified that appellant was placed under arrest for disorderly

conduct because, from the point of initial contact, appellant was agitated; appellant

continuously swore and yelled. Appellant was noncompliant toward Deputy Vella. The

incident occurred in a roadway located in the trailer park and in the presence of the two

neighbors, Ms. Hutson and Mr. Grove. Deputy Vella, on multiple occasions, warned

appellant to cease her behavior, but appellant continued to yell and swear.

       {¶7}   Appellant was charged with disorderly conduct and resisting arrest. After

a bench trial, appellant was found not guilty of disorderly conduct but guilty of resisting

arrest. Appellant was ordered to pay a $150 fine and sentenced to 90 days in jail, with

90 days suspended on the condition that appellant continue counseling. Appellant was

also placed on supervised probation for nine months.         Execution of sentence was

stayed pending appeal.

       {¶8}   On appeal, appellant asserts the following as her first assignment of error:

       {¶9}   “The Appellate Court lacks jurisdiction to hear the appeal due to the fact

that there is no final, appealable order under Crim.R. 32(C) and R.C. 2505.02.”

       {¶10} Appellant argues this court lacks jurisdiction due to a lack of a final,

appealable order, as the May 24, 2013 sentencing order did not specify the violation for

which appellant was convicted.

       {¶11} This court, in a July 18, 2014 judgment entry, remanded the matter and

instructed the trial court to issue a single sentencing entry that conforms with the

                                            3
provision set forth in State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, ¶14,

containing both “the fact of the conviction” and the sentence. The trial court complied

with this directive and issued a nunc pro tunc judgment entry on July 28, 2014.

Consequently, the trial court’s July 28, 2014 judgment entry has rendered appellant’s

first assignment of error moot.

       {¶12} Appellant’s first assignment of error is moot.

       {¶13} As appellant’s second assignment of error, she alleges:

       {¶14} “The Trial Court committed reversible and plain error in finding that Wiley

was being lawfully arrested after finding that there was probable cause to arrest Wiley

for disorderly conduct.”

       {¶15} Appellant was convicted for resisting arrest. R.C. 2921.33(A) states that

“[n]o person, recklessly or by force, shall resist or interfere with a lawful arrest of the

person or another.” On appeal, appellant maintains that she could not be found guilty of

resisting arrest because her arrest for disorderly conduct was not a lawful arrest.

       {¶16} “‘In order to prove a lawful arrest, * * * the State must prove both “that

there was a reasonable basis to believe that an offense was committed, (and) that the

offense was one for which the defendant could be lawfully arrested.”’” State v. Ellis, 2d

Dist. Montgomery No. 24003, 2011-Ohio-2967, ¶25, quoting State v. Burns, 2d Dist.

Montgomery No. 22674, 2010-Ohio-2831, ¶29.

       {¶17} R.C. 2917.11(A), disorderly conduct, states:

              No person shall recklessly cause inconvenience, annoyance, or
              alarm to another by doing any of the following: (1) Engaging in
              fighting, in threatening harm to persons or property, or in violent or
              turbulent behavior; (2) Making unreasonable noise or an offensively
              coarse utterance, gesture, or display or communicating
              unwarranted and grossly abusive language to any person; (3)

                                            4
             Insulting, taunting, or challenging another, under circumstances in
             which that conduct is likely to provoke a violent response; (4)
             Hindering or preventing the movement of persons on a public
             street, road, highway, or right-of-way, or to, from, within, or upon
             public or private property, so as to interfere with the rights of others,
             and by any act that serves no lawful and reasonable purpose of the
             offender; (5) Creating a condition that is physically offensive to
             persons or that presents a risk of physical harm to persons or
             property, by any act that serves no lawful and reasonable purpose
             of the offender.

       {¶18} Although appellant was charged under subsection (2), for purposes of

determining whether probable cause existed to arrest her, we believe it is appropriate to

review all of the potential subsections that support a probable cause finding. Pursuant

to R.C. 2917.11(E)(3)(a), “[d]isorderly conduct is a misdemeanor of the fourth degree if *

* * [t]he offender persists in disorderly conduct after reasonable warning or request to

desist.”

       {¶19} [A] ‘lawful arrest’ for disorderly conduct occurs regardless of
             whether the alleged offender is ultimately convicted if the officer
             had reasonable grounds to believe that the accused was recklessly
             causing inconvenience, annoyance or alarm to him by abusive
             language, and that the individual’s language and conduct was likely
             to provoke a violent response. * * * [T]he test is objective and [ ]
             the officer need not in fact be inconvenienced, annoyed or alarmed,
             or personally provoked to a violent response.

State v. Sansalone, 71 Ohio App.3d 284, 286 (1st Dist.1991). “The question, instead,

focuses on whether, under the circumstances, it is probable that a reasonable police

officer would find the accused’s language and conduct annoying or alarming and would

be provoked to want to respond violently.” Id.

       {¶20} Therefore, this court must determine whether Deputy Vella had probable

cause or a reasonable basis to believe that appellant had committed disorderly conduct.

                                             5
       {¶21} Appellant argues that her words used at the scene of the incident did not

rise to a level to establish any of the elements of R.C. 2917.11(A). Appellant argues the

audio recording of the incident demonstrates that “every incident of profanity that [she]

used was in reference to what others were saying.” Appellant maintains that she “never

tried to instigate a fight with Deputy Vella or try to provoke him into getting into a

physical confrontation.”

       {¶22} “Punishment for disorderly conduct based on spoken words is prohibited

unless those words amount to ‘fighting words.’” Middletown v. Carpenter, 12th Dist.

Butler No. CA2006-1-004, 2006-Ohio-3625, ¶14, citing State v. Hoffman, 57 Ohio St.2d

129, 133 (1979) and State v. Wood, 112 Ohio App.3d 621, 627 (1996).                “‘Fighting

words’ are those words that are likely by their very utterance to inflict injury or to incite

an immediate breach of the peace. In determining whether language rises to the level

of ‘fighting words,’ courts look at the circumstances surrounding the words.” (Citations

omitted.) Carpenter at ¶14.

       {¶23} Here, the testimony of Deputy Vella, which is corroborated by the audio

tape, demonstrates that appellant was extremely agitated at the scene of the incident.

The incident occurred on a roadway in a trailer park in a common area. Although it was

appellant’s desire to complete an incident report, she repeatedly failed to comply with

Deputy Vella’s lawful requests. Instead, she yelled, cursed, and continued to raise her

voice to a point where residents of the trailer park could hear her shouting. On a few

occasions, Deputy Vella instructed appellant’s son to stand away from the scene of this

incident to calm appellant’s agitation; however, appellant defied Deputy Vella’s request

and instructed her son to come back over to where she was standing. Further, despite

                                             6
appellant’s contentions otherwise, she did indeed call Deputy Vella an “asshole.” The

record demonstrates that Deputy Vella, on numerous occasions, warned appellant that

she was going to be placed under arrest for disorderly conduct. Appellant, however,

continued this course of behavior, including her statement to Deputy Vella to “stay the

‘F’ away from [her].”

       {¶24} At oral argument, appellant argued that she was improperly arrested

because Deputy Vella based her arrest for disorderly conduct on a prior incident

regarding appellant and Toni. Appellant cites to the audiotape of the incident where

Deputy Vella refers to the prior incident. We acknowledge that the officers had been to

the trailer earlier that day regarding an incident between appellant and Toni and that

Deputy Vella testified that appellant exhibited disorderly conduct at this previous

incident. See State v. Brown, 11th Dist. Lake No. 2006-L-040, 2007-Ohio-464, ¶34 (“it

is the collective knowledge of the law-enforcement officers that allows the arresting

officer to rely upon those facts to effect an arrest”). Yet, the testimony indicates that

when questioned as to why appellant was placed under arrest for disorderly conduct,

Deputy Vella focused primarily on the incident at issue, citing the aforementioned facts.

       {¶25} Under this set of circumstances, the deputy clearly had probable cause to

arrest appellant for violating one or more subsections of R.C. 2917.11(A). To hold

otherwise would suggest that the deputy must wait for the situation to get further out of

control and risk physical harm to persons or property. Appellant’s continued refusal to

comply with the deputy’s reasonable request in this potentially volatile environment was

inexcusable and served no “lawful or reasonable purpose.”

                                            7
         {¶26} Based on the foregoing, appellant’s second assignment of error is without

merit.

         {¶27} Appellant’s third assignment of error alleges:

         {¶28} “The Trial Court committed reversible error in assessing a fine without any

regard to Wiley’s ability to pay said fine.”

         {¶29} Appellant argues that R.C. 2929.19(B)(5) requires the trial court to

consider the offender’s ability to pay before imposing a fine. It is clear, however, that

R.C. 2929.19 applies to the imposition of sentence in felony cases. Section A states,

with emphasis added:

               The court shall hold a sentencing hearing before imposing a
               sentence under this chapter upon an offender who was convicted of
               or pleaded guilty to a felony and before resentencing an offender
               who was convicted of or pleaded guilty to a felony and whose case
               was remanded pursuant to section 2953.07 or 2953.08 of the
               Revised Code. * * *

         {¶30} R.C. 2929.19(B)(5) states: “Before imposing a financial sanction under

section 2929.18 of the Revised Code or a fine under section 2929.32 of the Revised

Code, the court shall consider the offender’s present and future ability to pay the

amount of the sanction or fine.” However, R.C. 2929.18 applies to a “court imposing a

sentence upon an offender for a felony,” and R.C. 2929.32 applies to the imposition of

additional fines under certain circumstances, none of which apply here.

         {¶31} R.C. 2929.22 governs the imposition of sentence for a misdemeanor.

Appellant did not object or otherwise address the trial court with respect to the

imposition of her fine. Former R.C. 2929.22(E) and (F) provided:

               (E) The court shall not impose a fine in addition to imprisonment for
               a misdemeanor, unless a fine is specially adapted to deterrence of
               the offense or the correction of the offender, the offense has

                                               8
              proximately resulted in physical harm to the person or property of
              another, or the offense was committed for hire or for purpose of
              gain.

              (F) The court shall not impose a fine or fines which, in the
              aggregate and to the extent not suspended by the court, exceeds
              the amount which the offender is or will be able to pay by the
              method and within the time allowed without undue hardship to
              himself or his dependents, or will prevent him from making
              restitution or reparation to the victim of his offense.

       {¶32} These sections have been removed from the current version of the

statute, and thus do not apply to appellant’s conviction. Appellant has failed to direct us

to any statutory provision that would place an obligation on the trial court, as appellant

suggests, when imposing a fine for a misdemeanor. There is no requirement in R.C.

2929.22 that the trial court make any affirmative finding on the record with regard to any

of the considerations set forth in that section.

       {¶33} Appellant’s third assignment of error is without merit.

       {¶34} Based on the opinion of this court, the judgment of the Portage County

Municipal Court, Ravenna Division, is hereby affirmed.

CYNTHIA WESTCOTT RICE, J.,

COLLEEN MARY O’TOOLE, J.,

concur.

                                              9


Affirmed and Opinion Filed March 17, 2015

                                         S   In The
                                 Court of Appeals
                          Fifth District of Texas at Dallas
                                      No. 05-13-01355-CR

                              BENJAMIN ANDERSON, Appellant
                                           V.
                               THE STATE OF TEXAS, Appellee

                        On Appeal from the 86th Judicial District Court
                                   Kaufman County, Texas
                              Trial Court Cause No. 31815-86

                              MEMORANDUM OPINION
                           Before Justices Bridges, Fillmore, and Brown
                                    Opinion by Justice Bridges
        The State charged appellant Benjamin Anderson with (1) fraudulent use or possession of

identifying information; (2) possession of a controlled substance, less than one gram; and (3)

tampering with a government record. Anderson filed a motion to suppress, which the trial court

denied. Anderson then pleaded guilty to tampering with a government record and was sentenced

to fifteen months state jail time.

        On appeal, he argues the officer did not have reasonable suspicion to detain and question

him further after the initial reason for the traffic stop ended, and the officer’s questions during

the stop violated the reasonableness standard set forth in Terry v. Ohio, 392 U.S. 1 (1968). We

affirm the trial court’s judgment.
                                            Background

       The following facts are from the officers that testified at the suppression hearing. Around

1:45 p.m. on March 13, 2013, Officer John Abernathy was on patrol when he observed a “clean,

white vehicle” pass him in the fast lane. He testified it caught his attention because it was really

clean. He then observed the car traveling sixty-five or sixty-seven-miles-per-hour in a fifty-five-

miles-per-hour construction zone. He initiated a traffic stop. Officer Abernathy admitted that

very early into the stop, he planned to issue a verbal warning for speeding; however, that later

changed.

       Anderson first identified himself to Officer Abernathy as Michael Diedrick and provided

a driver’s license confirming the name. Anderson also admitted the car was a rental, and he

provided a rental agreement with the name Michael Diedrick.

       Officer Abernathy had specialized training in drug interdiction, in which he learned to

look at certain cars and indicators pre and post stop, which would lead an officer to believe

criminal activity was occurring.

       Officer Abernathy observed two cell phones in plain view. Based on his training and

experience, he explained two cell phones could indicate involvement in criminal activity because

a person would use one cell phone for personal business and use the second for criminal activity.

       Officer Abernathy also observed two air fresheners attached to the rear view mirror of the

car. He testified their presence raised his suspicion because it is unusual to see air fresheners in a

rental car unless someone is trying to mask the odor of narcotics.

       When Officer Abernathy asked Anderson about his travels, Anderson said he was coming

from Louisiana and headed to Colorado. Officer Abernathy testified Anderson was not driving

the most direct route to his destination.

                                                 –2–
        Officer Abernathy asked Anderson if he had any prior arrests, and Anderson said yes. He

first said he had been arrested for DUI in Louisiana, but later said the arrest occurred in

Minnesota. Because of the change in story, Officer Abernathy believed Anderson was lying to

him about his past. His suspicions were confirmed when dispatch ran Michael Diedrick’s

criminal history, and Diedrick had criminal records in New York, Montana, and Colorado.

Diedrick did not have any criminal history from Louisiana or Minnesota. Officer Abernathy,

“knew at that point that he was not being honest with me.”

        Between the time Officer Abernathy contacted dispatch and received the return

information, he contacted Cody Henderson, a DPS trooper with more experience in criminal

interdiction.   Officer Abernathy asked Trooper Henderson if he should get a little more

information from Anderson and try to clarify his story.       Trooper Henderson testified he

expressed his suspicion about the situation to Officer Abernathy.          Trooper Henderson

specifically testified the presence of air fresheners in a rental car was “a big indicator,” and

Anderson was traveling from “a known drug area to another drug area.”

        After talking with Trooper Henderson, Officer Abernathy returned to the car and asked

Anderson about his work. Anderson said he started a construction company that worked on

renovations. Officer Abernathy testified Anderson’s answer was “very hesitant, and he mumbled

a few times, seemed nervous.”

        At this point, approximately twelve minutes into the stop, Officer Abernathy asked to

look inside the vehicle.   Anderson answered, “I don’t consent to a search, sir.”       Officer

Abernathy said his response was not a “normal” response because Anderson used “legal jargon.”

        Officer Abernathy called for a K-9 unit to conduct an open air search of the vehicle.

While he made this phone call, Officer Ross arrived as the back up officer. Officer Ross talked

                                              –3–
with Anderson. Anderson told him different information regarding his employment and his prior

criminal history than the information he relayed to Officer Abernathy.

       Deputy Ben Schoeff and his dog, Nurmo, arrived approximately thirty minutes later.

Deputy Schoeff testified Nurmo was trained to alert on marijuana, methamphetamine, heroin,

and cocaine. Nurmo alerted by biting, barking, or scratching at the source of the odor.

       During Nurmo’s open air search, he stopped at the driver’s door handle and alerted by

biting and pawing at the handle.       Based on Nurmo’s alert, Officer Abernathy, Trooper

Henderson, and Deputy Schoeff conducted a search of Anderson’s vehicle.

       In the trunk, they found a printer, along with some plain paper and a page with printed

blank checks. A laptop, photo paper, real estate application packet, forms kit, and opened

packets of blank checks were also located inside the trunk. They also found a backpack with a

small baggie containing what appeared to be three hydrocodone pills and a small amount of

green residue Officer Abernathy believed to be marijuana. The backpack contained a second

baggie containing marijuana residue, a grenade-style crusher used to separate a marijuana plant,

and another smaller baggie with a small amount of marijuana. Two thousand dollars was also

found inside the backpack.

       Anderson was then put in handcuffs and searched. Inside Anderson’s shoe, Officer

Abernathy found a bag containing two blunts, which he described as “a green leafy substance

believed to be marijuana wrapped in cigar paper.

       During the continued search of the car, Deputy Schoeff found a container attached to a

key ring in the ignition that contained marijuana residue. Officer Abernathy found ID cards from

Arkansas, Tennessee, Colorado, and Louisiana. He also found a birth certificate and social

security cards. Based on all these items, Officer Abernathy believed Anderson was involved in

ID theft or forgery.

                                               –4–
       Anderson was arrested and taken into custody.            Anderson’s true identity was not

discovered until approximately thirty-six hours after his arrest.

       At the conclusion of the suppression hearing, the trial court discussed its concerns about

what occurred after Officer Abernathy told Anderson he was only going to receive a verbal

warning for speeding. “The issue is, was there justification for the continued detention after

Officer Abernathy said, I’m just going to give you a warning.” After further argument from both

sides, the court stated the following:

               The determination of the case leads the Court to believe reasonable
               suspicion for the officer to continue the search must have been
               determined prior to or at the same time as the officer concludes his
               reason for the initial stop. Twenty-five seconds into the stop, the
               officer informed the defendant that he was going to give him a
               verbal warning, and he told that to - - again that to the defendant
               later on.

               Hence, we must examine what the officer would have known 25
               seconds in. . . . I find no probative value whatsoever that the
               defendant was driving a clean car.

               The officer also would have observed the two cellphones, and
               while they could have been used for almost anything, including
               one for personal use and one for business use, it is also consistent
               with drug traffic to have two phones.

               Air freshener in a new rental car would be unusual. And a rent-a-
               car, itself, would be some indication of possible drug use because
               if somebody’s caught in the car with drugs, it won’t be confiscated
               because it’s a rental car.

               The question is, is this reasonable suspicion. The Court believes it
               is and denies the Motion for Suppression.

       Anderson later entered a guilty plea to tampering with a government record, received

fifteen months state jail time, and the State abandoned the remaining two counts in the

indictment. This appeal followed.

                                                –5–
                                             Discussion

        Anderson argues on appeal that Officer Abernathy did not have reasonable suspicion to

detain and question him further after the initial reason for the traffic stop ended, and the officer’s

questions during the stop violated the reasonableness standard set forth in Terry. The State failed

to timely file a response brief.

        We review a trial court’s ruling on a motion to suppress evidence under a bifurcated

standard of review. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013). We defer

to the trial court’s determination of historical facts, while we review the application of the law de

novo. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). When, as in this case,

the trial court makes no findings of historical facts, we view the evidence in the light most

favorable to the trial court’s ruling and afford the prevailing party the strongest legitimate view

of the evidence and all reasonable inferences that may be drawn from that evidence. State v.

Duran, 396 S.W.3d 563, 571 (Tex. Crim. App. 2013).

        A detention, as opposed to an arrest, may be justified on less than probable cause if a

person is reasonably suspected of criminal activity based on specific, articulable facts. Terry,

392 U.S. at 21. An officer conducts a lawful temporary detention when he has reasonable

suspicion to believe an individual is violating the law. Crain v. State, 315 S.W.3d 43, 40 (Tex.

Crim. App. 2010). Articulable facts must amount to more than a mere inarticulate hunch,

suspicion, or good faith suspicion that a crime is in progress. Id. In deciding whether reasonable

suspicion exists, we look at the facts available to the officer at the time of the detention. Id. This

is an objective standard that disregards any subjective intent of the officer making the stop and

looks solely to whether an objective basis for the stop exists. Richardson v. State, 402 S.W.3d

272, 276–77 (Tex. Crim. App. 2013).

                                                 –6–
       An investigative detention must be temporary, and the questioning must last no longer

than is necessary to effectuate the purpose of the stop. Balentine v. State, 71 S.W.3d 763, 770

(Tex. Crim. App. 2002). During the detention, an officer may inquire into matters unrelated to

purposes of the traffic stop so long as the stop is not unreasonably extended. Kothe v. State, 152

S.W.3d 54, 63 (Tex. Crim. App. 2004). Once an officer concludes the investigation of the

conduct that initiated the stop, continued detention of a person is permitted for the purpose of

issuing a citation. Id. at 64. Further, once the reason for the stop has been satisfied, the stop may

not be used as a “fishing expedition for unrelated criminal activity.” Richardson, 402 S.W.3d at

277. However, if an officer develops reasonable suspicion during a valid traffic stop that the

detainee is engaged in criminal activity, prolonged or continued detention is justified. Id.

       Anderson concedes Officer Abernathy conducted a reasonable detention under Terry

when he stopped Anderson for speeding and asked for his license and rental car agreement.

Anderson then argues he “had done nothing at this point to raise any suspicion with the officer.”

We disagree. Officer Abernathy testified he observed air fresheners hanging in the rental car,

which was unusual, and he explained air fresheners were often used to mask the smell of

narcotics. Officer Abernathy also observed two cell phones in the passenger seat, which was

another indicator of possible criminal activity. We agree with the trial court’s conclusion that

this information, which Officer Abernathy had in the first twenty-five seconds of the stop,

provided him with reasonable suspicion to continue the detention.

       Under these facts, however, we do not agree the trial court’s reasonable suspicion inquiry

was in fact limited to what Officer Abernathy observed in the first twenty-five seconds prior to

telling Anderson he would receive only a warning for speeding. Officer Abernathy’s question

about where Anderson was traveling, which occurred approximately ninety seconds into the stop,

and his question about Anderson’s prior arrests, which occurred approximately three minutes and

                                                –7–
fifty seconds into the stop, did not unreasonably extend the traffic stop. Id. (officer may inquire

into matters unrelated to purposes of the traffic stop so long as the stop is not unreasonably

extended). Further, Officer Abernathy testified he also found it suspicious Anderson was driving

from Louisiana to Colorado on an indirect route.          Officer Abernathy gathered all of this

information less than four minutes into the stop.

       Moreover, at this point, Officer Abernathy had not checked Anderson’s driver’s license,

car registration, or run an outstanding warrant check, all of which are considered reasonable

actions by an officer during a traffic stop. Kothe, 152 S.W.3d at 63 (traffic stop may last as long

as reasonably necessary to check license, car registration, and conduct a computer check of the

information). And as the Texas Court of Criminal Appeals has stated, “We do not intend to

create a bright line rule that would automatically make an investigative detention unreasonable

the moment that the initial reason for the traffic stop ends.” St. George v. State, 237 S.W.3d 720,

727 (Tex. Crim. App. 2007). Here, Officer Abernathy had reasonable suspicion to continue to

ask Anderson questions, particularly while he waited for dispatch to return with information

regarding his criminal history check.

       Dispatch provided a criminal history a little over nine minutes into the stop. Officer

Abernathy then learned the information Anderson provided did not match that provided by

dispatch; therefore, Officer Abernathy suspected Anderson was being untruthful about other

information. This provided further information upon which Officer Abernathy was justified in

continuing the traffic stop for further investigation. See Richardson, 402 S.W.3d at 277 (if an

officer develops reasonable suspicion during a valid traffic stop continued detention is justified).

       Accordingly, Officer Abernathy had reasonable suspicion to detain and question

Anderson, and his questions did not violate Terry by extending the scope of the traffic stop

beyond the initial purpose of the stop. As such, the trial court did not err in denying his motion

                                                –8–
to suppress, and the incriminating evidence found inside Anderson’s car is not fruit of the

poisonous tree. See Wong Sun v. United States, 371 U.S. 471, 485 (1963) (concluding all

evidence derived from the exploitation of an illegal detention, search, or seizure must be

suppressed unless the State shows a break in the chain of events sufficient to refute the inference

the evidence was obtained in violation of the Fourth Amendment); see also Grieve v. State, No.

05-07-00156-CR, 2008 WL 2152890, at *5 (Tex. App.—Dallas May 22, 2008, no pet.) (not

designated for publication). We overrule Anderson’s arguments.

                                           Conclusion

       The judgment of the trial court is affirmed.

Do Not Publish
TEX. R. APP. P. 47
131355F.U05                                           /David L. Bridges/
                                                      DAVID L. BRIDGES
                                                      JUSTICE

                                               –9–