State v. Dabbelt

2025 Ohio 1675

• Court: Ohio Court of Appeals
• Decided: May 9, 2025
• Docket: 30285
• Status: Published

Opinion

[Cite as State v. Dabbelt, 2025-Ohio-1675.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Appellee : C.A. No. 30285 : v. : Trial Court Case No. 23CRB01350 : ANDREW J. DABBELT : (Criminal Appeal from Municipal Court) : Appellant : :

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OPINION

Rendered on May 9, 2025

KIRSTEN KNIGHT, Attorney for Appellant

JOHN D. EVERETT, Attorney for Appellee

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TUCKER, J.

{¶ 1} Andrew J. Dabbelt appeals from his conviction following a bench trial on one

count of violating a protection order, a first-degree misdemeanor.

{¶ 2} Dabbelt challenges the legal sufficiency of the State’s evidence to sustain his

conviction. Notwithstanding the language of the protection order, he also argues that one -2-

of his alleged violations involved speech protected by the First Amendment.

{¶ 3} We conclude that the State presented legally sufficient evidence and that

Dabbelt’s constitutional argument is unavailing. Accordingly, the trial court’s judgment will

be affirmed.

I. Background

{¶ 4} On October 5, 2023, N.D. obtained an ex parte civil stalking protection order

against Dabbelt. The order was based on N.D.’s allegations that Dabbelt had been

sending him threatening messages through Facebook. The order included the following

no-contact provision:

RESPONDENT SHALL NOT INITIATE OR HAVE ANY CONTACT with the

protected persons named in this Order or their residences, businesses,

places of employment, schools, day care centers, or child care providers.

Contact includes, but is not limited to, landline, cordless, cellular or digital

telephone; text; instant messaging; fax; e-mail; voicemail; delivery service;

social media; blogging; writings; electronic communications; posting a

message; or communications by any other means directly or through

another person.

{¶ 5} Dabbelt was served with the protection order on the evening of October 5,

2023. Shortly after midnight, in the early morning hours of October 6, 2023, N.D. received

a notification on his cell phone that Dabbelt had sent him a Facebook “friend request.”

N.D. did not accept the request. A short time later, N.D. saw a Facebook post Dabbelt

had made referencing N.D., the protection order, and a phone call Dabbelt had received -3-

from a police officer. N.D. then received a notification about Dabbelt leaving a negative

employment-related review of him on Facebook. Finally, one of N.D.’s friends apparently

sent or forwarded him two Facebook posts from Dabbelt. One of them referred to N.D.

with profanities, and the other contained the substance of the negative review.

{¶ 6} Based on the foregoing communications, Dabbelt was charged with one

count of violating a protection order. The case proceeded to a June 5, 2024 bench trial.

The only witnesses were N.D., Dabbelt, and Centerville police officer Michael Fry, who

responded to N.D.’s complaint regarding the Facebook communications. After N.D.

testified about the above-referenced messages, Fry testified about his investigation into

the matter. He had responded to N.D.’s residence, reviewed the Facebook postings, and

spoken to Dabbelt twice on the telephone.

{¶ 7} For his part, Dabbelt denied sending the friend request to N.D. He claimed

that other people had access to his Facebook account and suggested that one of them

had sent it. As for his post referring to N.D., the protection order, and a phone call with

Fry, Dabbelt admitted making that post on his own Facebook page. However, he denied

“tagging” N.D. in it, claiming instead that he only “mentioned” N.D. Given that he and N.D.

were not Facebook “friends,” Dabbelt opined that N.D. would not have received a

notification about the post. Finally, Dabbelt admitted leaving a negative review of N.D.

{¶ 8} Following the presentation of evidence, Dabbelt moved for a judgment of

acquittal under Crim.R. 29. Citing Bey v. Rasawehr, 2020-Ohio-3301, he argued that he

had a First Amendment right to leave the review and to make comments about N.D. on

Facebook. The trial court overruled the motion and found Dabbelt guilty. It reasoned that -4-

Bey involved regulating the content of a defendant’s speech on the internet, whereas the

protection order against Dabbelt did not address the content of his communications.

Instead, it prohibited contact with N.D. The trial court then found that Dabbelt “possessed

a firm working knowledge of the Facebook platform” and knew “that his activities on

Facebook on 6 October 2023 would immediately trigger direct notifications to [N.D.’s]

Facebook accounts.” Therefore, the trial court held that Dabbelt recklessly had violated

the terms of the protection order. It imposed a 180-day jail sentence with 179 days

suspended and credit for one day served. It also imposed a partially suspended fine and

placed Dabbelt on two years of unsupervised probation.

II. Analysis

{¶ 9} On appeal, Dabbelt advances the following two assignments of error, which

he briefs and argues together:

1. THE TRIAL COURT’S FINDING OF GUILT WAS NOT SUPPORTED

BY SUFFICIENT, CREDIBLE EVIDENCE.

2. APPELLANT’S REVIEW ON SOCIAL MEDIA IS PROTECTED BY THE

FIRST AMENDMENT AND WAS NOT A VIOLATION OF THE

PROTECTION ORDER.

{¶ 10} Dabbelt challenges the legal sufficiency of the State’s evidence to sustain

his conviction. He contends the State failed to prove that he sent the friend request to

N.D. He also claims his post referencing N.D., the protection order, and a phone call with

officer Fry was made on his own Facebook page. Although the post mentioned N.D.,

Dabbelt insists that he did not “tag” N.D. or notify him of the post. Finally, he argues that -5-

the review he left was on N.D.’s employer’s Facebook page and that it was free speech

protected by the First Amendment.

{¶ 11} “An appellate court’s function when reviewing the sufficiency of the

evidence to support a criminal conviction is to examine the evidence admitted at trial to

determine whether such evidence, if believed, would convince the average mind of the

defendant’s guilt beyond a reasonable doubt. The relevant inquiry is whether, after

viewing the evidence in a light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime proven beyond a reasonable doubt.”

State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.

{¶ 12} With the foregoing standards in mind, we reject Dabbelt’s challenge to the

legal sufficiency of the State’s evidence. He was convicted of violating R.C.

2919.27(A)(2), which provides that no person shall recklessly violate the terms of a

protection order. “A person acts recklessly when, with heedless indifference to the

consequences, the person disregards a substantial and unjustifiable risk that the person’s

conduct is likely to cause a certain result or is likely to be of a certain nature.” R.C.

2901.22(C).

{¶ 13} Here the State presented evidence of five Facebook posts or messages.

The first was a friend request sent from Dabbelt’s account to N.D.’s account. See State’s

Trial Exhibits C and G. N.D. received a notification about the friend request, which

Dabbelt denied sending. In its written decision, the trial court noted Dabbelt’s denial

without making a factual finding as to whether he sent the request.

{¶ 14} The second post was made by Dabbelt on his own Facebook page. See -6-

State’s Trial Exhibit E. It included a screen shot of the protection order, mentioned

Dabbelt’s phone conversation with officer Fry, and referenced N.D. by name, saying

“Good luck [N.D.] about lying.” N.D.’s name appeared in a hyperlink in the Facebook post.

At trial, a dispute arose concerning whether Dabbelt’s post merely “mentioned” N.D. or

whether it “tagged” him. Dabbelt insisted that he only mentioned N.D. He also opined that

mentioning N.D. in the post would not have resulted in N.D.’s receiving a notification about

it because they were not “Facebook friends.” For his part, N.D. testified that he was

tagged and that he did receive a notification, but he produced no screen shot or other

supporting evidence to substantiate his claim. In its written decision, the trial court did not

specifically address whether Dabbelt had “tagged” N.D. in this Facebook post or whether

N.D. had received a notification about it. As noted above, however, the trial court did find,

more generally, that Dabbelt “was aware that his activities on Facebook on 6 October

2023 would immediately trigger direct notifications” to N.D.

{¶ 15} The third and fourth posts appear to have been sent or forwarded to N.D.

by one of his own friends. See State’s Trial Exhibits D and F. One of the posts consisted

of Dabbelt calling N.D. names on Dabbelt’s own Facebook page. The other post

contained the substance of Dabbelt’s negative review of N.D.

{¶ 16} The final message was a notification that N.D. received in his Facebook

account. See State’s Trial Exhibit H. In reference to Dabbelt’s negative review, the

notification advised N.D. that Dabbelt “doesn’t recommend” him. At trial, N.D. and Dabbelt

disputed whether the Facebook page where Dabbelt left the review was N.D.’s own

professional work-related Facebook page or whether the page belonged to N.D.’s -7-

employer. In its written decision, the trial court did not resolve this issue.

{¶ 17} Upon review, we conclude that the State’s evidence of the foregoing

Facebook posts or messages was legally sufficient to sustain Dabbelt’s conviction for

violating the protection order. For present purposes, we will assume, arguendo, that

Dabbelt did not send the friend request. Given his denial and the trial court’s failure to

make a factual finding on the issue, we decline to affirm his conviction based on the friend

request despite our reservations about the credibility of his testimony. Dabbelt’s

conviction also was not supported by the two messages that apparently were forwarded

to N.D. by a friend. Nothing suggests that N.D.’s friend sent the messages on Dabbelt’s

behalf or that Dabbelt even knew the posts had been forwarded to N.D.

{¶ 18} We also will assume, arguendo, that Dabbelt did not “tag” N.D. in the post

that included a screen shot of the protection order, mentioned Dabbelt’s phone

conversation with officer Fry, and referenced N.D. by name. In its written decision, the

trial court made no finding as to whether N.D. had been “tagged” or merely “mentioned.”

Although Dabbelt admitted mentioning N.D. in the post, he claimed that a mention would

not have generated a notification to N.D. because they were not Facebook friends. N.D.

testified, however, that he did receive a notification about the post. Significantly, the trial

court also found that Dabbelt knew his Facebook posts would trigger notifications to N.D.

Given this finding by the trial court, we conclude that Dabbelt’s Facebook post mentioning

N.D. and including N.D.’s name as a hyperlink violated the protection order. Among other

things, the order prohibited Dabbelt from initiating any contact with N.D. by posting a

message on social media. Despite that prohibition, Dabbelt posted a Facebook message -8-

about N.D. with knowledge that Facebook would notify N.D. of the message. In so doing,

Dabbelt initiated contact with N.D. through social media in violation of the order.

{¶ 19} Finally, Dabbelt also violated the protection order by leaving a negative

review on Facebook. As noted above, the order prohibited him from initiating or having

any contact with N.D. or N.D.’s employer. Despite this prohibition, Dabbelt admitted

posting a negative review of N.D. on Facebook, and Facebook notified N.D. of the review.

Dabbelt plainly made the derogatory post to harm N.D. professionally, despite never

having been a client of N.D. The review accused N.D. of caring about his job more than

his child. It also accused N.D. of threatening “his baby’s momma” and referred to him as

a “total pos.” Even if we accept Dabbelt’s assertion that he left the review on N.D.’s

employer’s Facebook page, rather than on N.D.’s own professional page, the post still

violated the no-contact provision. Indeed, by discussing N.D. on N.D.’s employer’s

Facebook page, Dabbelt initiated contact with N.D.’s employer.

{¶ 20} In defense of the negative review, Dabbelt makes a free-speech argument.

Although the protection order prohibited contact with N.D.’s employer, Dabbelt cites Bey

v. Rasawehr, 2020-Ohio-3301, and argues that his review was protected by the First

Amendment and that it did not violate the protection order. In Bey, the Ohio Supreme

Court held that content-based restrictions on speech in a protection order violated the

First Amendment. As a result, the Ohio Supreme Court vacated a portion of the order that

enjoined future social media postings about the appellees or their alleged culpability in

the deaths of their husbands.

{¶ 21} The trial court found Bey distinguishable insofar as it involved a content- -9-

based restriction on speech. Unlike Bey, the trial court reasoned that the order in

Dabbelt’s case prohibited contact and was not a content-based restriction on speech.

Upon review, we find Bey distinguishable and unhelpful to Dabbelt for a more

fundamental reason. Notably, Bey was not a criminal case. It involved respondent

Rasawehr’s appeal from the issuance of a civil stalking protection order. Therefore, the

constitutionality of the protection order’s prohibitions was directly at issue.

{¶ 22} Unlike Bey, Dabbelt has appealed from his criminal conviction for violating

a protection order, not from the issuance of the order. “The general rule is that unless [a

protection] order is void for lack of subject-matter or personal jurisdiction, it must be

obeyed until it is set aside by proper proceedings. . . . Unless a judgment was issued

without jurisdiction or was procured by fraud, it is considered valid, and even though it

may be flawed in its resolution of the merits, its integrity is generally not subject to

collateral attack in a separate judicial proceeding.” (Citations omitted.) Cincinnati Bar

Assn. v. Hauck, 2016-Ohio-7826, ¶ 28.

{¶ 23} In Hauck, the Ohio Supreme Court rejected an attorney’s argument that he

did not violate the Rules of Professional Conduct by assisting a client with violating a

protection order that the attorney claimed was unconstitutional. The Ohio Supreme Court

held that the attorney could not collaterally attack the constitutionality of the protection

order in a disciplinary proceeding for assisting in its violation. Id. at ¶ 29; see also State

v. Allen, 2023-Ohio-3655, ¶ 30 (2d Dist.) (“Here Allen does not argue that the protection

order was void for lack of subject-matter or personal jurisdiction. Instead, he seeks to

challenge the order’s constitutionality in a criminal case involving his prosecution for -10-

violating it. . . . [W]e conclude that Allen’s argument constitutes an impermissible collateral

attack on the order.”); State v. Phipps, 2022-Ohio-1188, ¶ 11, fn. 1 (2d Dist.) (recognizing

that a defendant cannot challenge the validity of a protection order in a criminal case

involving his prosecution for violating it); State v. Hall, 2022-Ohio-3455, ¶ 8 (2d Dist.)

(“Hall admittedly had been served with and signed a court-issued protection order

prohibiting him from engaging in certain conduct. The criminal charges accused him of

violating the order. Hall’s due-process argument constitutes an improper collateral attack

on the protection order. He cannot challenge its validity in a criminal case involving his

prosecution for violating it.”).

{¶ 24} As in the foregoing cases, Dabbelt cannot collaterally attack N.D.’s

protection order in his criminal case. Even if the order is constitutionally infirm, he is

required to obey it “until it is set aside by proper proceedings.” Hauck at ¶ 28.

Consequently, we reject Dabbelt’s argument that his Facebook review was protected by

the First Amendment notwithstanding the protection order’s clear no-contact provision.

III. Conclusion

{¶ 25} For the reasons set forth above, we overrule Dabbelt’s two assignments of

error and affirm the judgment of the Kettering Municipal Court.

EPLEY, P.J. and LEWIS, J., concur.