State v. Dunbar

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Sullivan
Case Nos. 2024-0187
2024-0188
Citation: State v. Dunbar, 2025 N.H. 26

THE STATE OF NEW HAMPSHIRE

v.

JAMES J. DUNBAR

Submitted: March 4, 2025
Opinion Issued: June 6, 2025

John M. Formella, attorney general, and Anthony J. Galdieri, solicitor
general (Sam M. Gonyea, assistant attorney general, on the brief), for the State.

Christopher M. Johnson, chief appellate defender, of Concord, on the
brief, and Kirkland & Ellis LLP, of Chicago (Helen E. Witt on the brief), for the
defendant.

MACDONALD, C.J.

¶1 The defendant, James Dunbar, appeals an order of the Superior
Court (Honigberg, J.) ruling that he violated the conditions of his probation and
suspended sentence by contacting the victim via Facebook posts in violation of
a stalking final order of protection (the “protection order”). The defendant
argues that his posts: (1) were not contact with the victim in violation of the
protection order; and (2) cannot serve as the basis for imposing his suspended
sentence or for a probation violation because they were constitutionally
protected speech. We affirm.

I. Background

¶2 The trial court found the following facts, or they are otherwise
supported by the record. In 2023, the defendant was serving the suspended
portion of a sentence for his conviction for criminal mischief and was on
probation for his conviction for being a felon in possession of a dangerous
weapon. A term of the defendant’s suspended sentence was to be on good
behavior for three years, and the terms of his probation required him to “be of
good conduct, obey all laws, and be arrest-free.” He was also subject to a
protection order which required that he “not have any contact with the [victim],
whether in person or through third persons, including but not limited to
contact by telephone, letters, fax, e-mail, the sending or delivery of gifts or any
other method unless specifically authorized by the court.”

¶3 The defendant, while subject to the protection order, posted
messages on his Facebook page. The posts referred to the victim and her
deceased husband by aliases similar to their names. Some of the messages
included phrases such as “[n]otification” to the “resident of [the victim’s
address],” and “[n]otification to [the victim and her husband] [and] family
member as well better pay attention to this.” In another message which the
trial court found was directed at both the victim and her husband, the
defendant said that they “better take this public notification seriously.” Some
of the messages included threats directed at the victim and her family.
Facebook users viewed the messages and notified the victim, and she then
viewed the messages. The defendant was arrested and charged with two
counts of violating the protection order and one count of stalking, in part
because his posts were alleged to have amounted to contact with the victim.
The defendant was found not guilty on all charges.

¶4 The arrest served as the basis for an allegation by the defendant’s
probation officer that the defendant had violated the terms of his probation,
and of a motion by the State to impose the defendant’s suspended sentence.
The trial court found that the defendant’s Facebook posts violated the
protection order, and concluded that the defendant had, in turn, violated the
terms of his probation and suspended sentence. The court imposed a portion
of the defendant’s suspended sentence and sentenced him to twelve months in
the house of corrections, all suspended, for the probation violation. The
defendant unsuccessfully moved for reconsideration. These appeals followed.

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 II. Analysis

¶5 Probation may be revoked upon proof by a preponderance of the
evidence that the defendant has violated the terms of his freedom. See State v.
Kay, 162 N.H. 237, 244 (2011). To prevail on appeal, the defendant must show
that the evidence, viewed in the light most favorable to the State, fails to
support the trial court’s decision. Id.

¶6 The imposition of a suspended sentence is the remedy for a
defendant’s noncompliance with the conditions on which the sentence was
suspended, not a punishment for the underlying acts. State v. Luikart, 174
N.H. 210, 214 (2021). Determining whether the defendant has violated a
condition of his suspended sentence presents a separate task from determining
whether the defendant may bear criminal liability for the same underlying acts.
Id. (noting that a jury acquittal of criminal charges is not dispositive as to
whether a suspended sentence should be imposed). Thus, in the context of
considering a motion to impose the defendant’s suspended sentence, the trial
court must independently evaluate the evidence before it to determine whether
the State proved, by a preponderance of the evidence, that a violation of the
suspension condition occurred. Id. In order to prove a violation of good
behavior in the absence of a criminal conviction, the State has the burden to
prove the essential elements of the criminal conduct that amounts to the
alleged good behavior violation, and must do so by a preponderance of the
evidence. Id. at 216.

¶7 The trial court found that because the defendant violated the terms
of the protection order, he violated a condition of his suspended sentence and
the terms of his probation. On appeal, the defendant argues that: (1) the trial
court erred when it found that he contacted the victim in violation of the
protection order; and (2) his Facebook posts are constitutionally protected
speech that cannot serve as the basis for a probation violation or imposition of
his suspended sentence. A challenge to the sufficiency of the evidence raises a
claim of legal error, which we review de novo. See State v. Craig, 167 N.H. 361,
370 (2015). We also review questions of constitutional law de novo. S.D. v.
N.B., 176 N.H. 44, 48 (2023).

A. Protection Order

¶8 We first consider whether the defendant violated the protection
order. The protection order prohibits the defendant from having “any contact
with the [victim], whether in person or through third persons, including but not
limited to contact by telephone, letters, fax, e-mail, the sending or delivery of
gifts or any other method unless specifically authorized by the court.” The
order does not define “contact.” However, RSA 173-B:1, IV (2022) defines
“contact” as “any action to communicate with another either directly or
indirectly, including, but not limited to, using any form of electronic

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communication, leaving items, or causing another to communicate in such
fashion.” Although the parties argue otherwise, we conclude that this
definition of “contact” is applicable to the protection order at issue.

¶9 The protection order here was issued pursuant to RSA 633:3-a. RSA
633:3-a, III-a provides that a victim may, upon a showing of stalking by a
preponderance of the evidence, be granted relief to stop the stalking. “The
types of relief that may be granted . . . shall be the same as those set forth in
RSA 173-B.” RSA 633:3-a, III-a (emphasis added). RSA 173-B:5, I(a)(3) (2022),
in turn, allows the victim to receive a protection order as a form of relief which
can limit “the defendant from contacting the plaintiff.” “Contact” as used in
RSA chapter 173-B is defined in RSA 173-B:1, IV, and this definition of
“contact” applies to protection orders issued pursuant to RSA chapter 173-B.
See Craig, 167 N.H. at 365, 370-72 (applying definition of “contact” in RSA
173-B:1, IV to restraining order issued pursuant to RSA chapter 173-B).
Accordingly, this definition of contact also applies to protection orders issued
pursuant to RSA 633:3-a, III-a because otherwise the relief granted under RSA
633:3-a, III-a would not be “the same” as that under RSA chapter 173-B. See
RSA 633:3-a, III-a; Fisher v. Minichiello, 155 N.H. 188, 193 (2007) (“RSA
633:3-a, III-a arguably mandates the applicability of our interpretation of RSA
chapter 173-B to orders on civil stalking petitions.”). Accordingly, “contact” as
used in the protection order means “any action to communicate with [the
victim] either directly or indirectly, including, but not limited to, using any form
of electronic communication, leaving items, or causing another to communicate
in such fashion.” RSA 173-B:1, IV.

¶10 The State argues that the defendant indirectly contacted the victim
by posting messages to her on his public Facebook page which ultimately
reached her. “Indirect” is not defined in the statute, nor is it defined in the
order, and we therefore give it its plain and ordinary meaning, turning to the
dictionary for guidance. See RSA 21:2 (2020); Appeal of Town of Lincoln, 172
N.H. 244, 248 (2019). “Indirect” is defined as “[n]ot directly aimed at or
attained; not immediately resulting from an action or cause.” Oxford English
Dictionary,
https://www.oed.com/dictionary/indirect_adj?tab=meaning_and_use (last
visited May 30, 2025). Accordingly, the protection order prohibits the
defendant from engaging in actions to communicate with the victim indirectly,
including communicating by methods not directly aimed at her. We conclude
that the defendant indirectly contacted the victim in violation of the protection
order when he created public posts containing messages directed at the victim
on his Facebook profile page with the intent to notify her, and those messages
reached her.

¶11 In State v. Craig, we considered the application of RSA 633:3-a in
the context of postings on Facebook. See Craig, 167 N.H. at 369-70. As we
stated in Craig, Facebook is a widely used social media website. See id. at 369.

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The site is free to use by anyone with an email account, and the site allows
users to share information, maintain a profile page, and send messages to
other users, among other functions. See id. A Facebook profile page is a
webpage that is intended to convey information about the user. Id. By default,
a Facebook profile page is public, and when a user shares something publicly
on their profile page, anyone — “including people off of Facebook” — can see it.
See id. (quotations omitted).

¶12 In Craig, we held that the defendant contacted the victim in
violation of a restraining order by posting messages to the victim on his
Facebook profile page after sending her a letter telling her that he was posting
about her on Facebook. See id. at 377-78. The victim viewed the posts after
receiving the letter and after her mother alerted her of the posts. Id. The
language of some of the posts indicated an awareness by the defendant that
the victim had been reading them. Id. at 375-76. Under those circumstances,
we concluded that the defendant’s Facebook posts constituted contact with the
victim in part because we saw “no meaningful difference between the defendant
posting messages on Facebook with both the purpose and effect of
communicating a message to [the victim], and the defendant positioning
himself on a street corner with the knowledge and expectation that the victim
would pass by, and then shouting to her.” Id. at 376.

¶13 We find the reasoning in Craig applicable to this case. Here, the
defendant posted messages on his public Facebook profile page. One of the
defendant’s public posts began with “[n]otification” to “the resident of [the
victim’s address],” and referred to the owners of the property located at the
victim’s address by names nearly identical to the victim’s and her deceased
husband’s names. Another post was labeled as a “[n]otification” to the victim
and her husband, and stated that the victim and her husband and any family
member had “better pay attention to this.” The trial court found that the
defendant conveyed a threat in another post which was directed at the victim
and her husband and said “you better take this public notification seriously.”
On these facts, a reasonable factfinder could conclude — as the trial court did
— that the messages in the posts were directed at the victim and that the
defendant posted them to Facebook with the intent to notify her. The
defendant’s messages reached the victim when users on the platform
recognized them as threats and alerted her, and she read them, thereby
“‘achiev[ing] a communication’ with the victim indirectly.” See id. at 377.

¶14 The defendant nonetheless argues that he did not contact the
victim in violation of the protection order because he did not take steps to
convey the Facebook posts to the victim and he did not direct the victim’s
attention to them, unlike the defendant in Craig. We disagree. The evidence
shows that the defendant created posts containing messages directed at the
victim, that he posted them on his public Facebook page with the intent to
notify her, and that the messages reached her. Accordingly, as in Craig, the

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evidence supports a finding that the defendant posted messages on Facebook
with “the purpose and effect of communicating a message” to the victim. Id. at
376. Such conduct is, by definition, indirect contact because the defendant, by
using his Facebook page as the method to communicate his messages to the
victim, communicated with the victim through means not directly aimed at her.
Cf. id. at 377 (holding that defendant’s Facebook posts were “indirect[]”
communication). Consistent with our holding in Craig that “a broad
interpretation of ‘any action to communicate’ comports with the legislative
purpose of RSA chapter 173-B,” id. at 373, we conclude that by posting the
above-described messages to the victim on his public Facebook page with the
intent to notify her, the defendant took a sufficient step to convey the messages
to the victim to qualify as contact in violation of the protection order. Id.
(observing that “more than merely creating a message” is required to be
considered contact under RSA 173-B:1, IV, and that a defendant must take
“steps to convey [the message] to the victim”). Accordingly, on this record, we
conclude that the evidence is sufficient for a reasonable factfinder to conclude
that the defendant’s public notifications to the victim constitute indirect
contact with the victim in violation of the protection order.

B. Protected Speech

¶15 The defendant next argues that his social media posts cannot serve
as the basis for imposing his suspended sentence or as a probation violation
because his posts were speech protected by both the State and Federal
Constitutions. The trial court found that the defendant’s posts were not
constitutionally protected speech because they were true threats. The State
argues that there was sufficient evidence to support the trial court’s ruling that
the defendant’s Facebook posts were true threats. We agree with the State.

¶16 At the outset, we observe that the defendant’s brief makes only
passing references to the State Constitution and relies primarily on federal law
in support of his arguments. Accordingly, we conclude that the defendant has
not adequately developed an argument under the State Constitution, and we
limit our review to his arguments under the Federal Constitution. See State v.
Oakes, 161 N.H. 270, 278 (2010) (concluding defendant waived constitutional
arguments because he made only “passing references” to the State and Federal
Constitutions).

¶17 Under the Federal Constitution, true threats are a category of
speech not entitled to constitutional protection. See Counterman v. Colorado, 600 U.S. 66, 74 (2023). “True threats are ‘serious expression[s]’ conveying that
a speaker means to ‘commit an act of unlawful violence.’” Id. (quoting Virginia
v. Black, 538 U.S. 343, 359 (2003)). “The speaker need not intend to carry out
the threat.” Virginia, 538 U.S. at 359-60. “Rather, a prohibition on true
threats protects individuals from the fear of violence and from the disruption
that fear engenders,” as well as “from the possibility that the threatened

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violence will occur.” Id. at 360 (quotations omitted). “The existence of a threat
depends not on ‘the mental state of the author,’ but on ‘what the statement
conveys’ to the person on the other end.” Counterman, 600 U.S. at 74 (quoting
Elonis v. United States, 575 U.S. 723, 733 (2015)). However, for a true threat
to fall outside the protections of the First Amendment, the speaker must have
been at least reckless in issuing the true threat. See id. at 79.

¶18 We conclude that the defendant’s Facebook posts are true threats.
The defendant posted messages directed at the victim, her deceased husband,
and the victim’s family. In one post, the defendant said: “[Victim’s husband]
your next death certificate will be real this time mother f***ers you are f***ing
around with the wrong person a**hole I get my hands on you I will not be
responsible for what I do to you I have severe PTSD.” He concluded by saying:
“Ps I will hunt you down.” We agree with the trial court’s conclusion that the
post’s language was, consistent with the defendant’s other messages referring
to both the victim and her husband, sufficient to show that the threat was
directed at both the victim and her husband. The defendant said in another
message that if the victim’s husband’s family — which would include the victim
— comes near him: “I will clean their clocks and won’t be responsible for my
actions.” Read together, the defendant’s posts are true threats which express
an intent to commit an unlawful act of violence against the victim. See id. at
74.

¶19 The defendant further argues that his true threats are
constitutionally protected speech because there was insufficient evidence to
prove that he acted recklessly in issuing the threats. We disagree. First, the
language of the posts is unambiguously threatening. The defendant said that
he would: hunt down the victim and her husband; “clean their clocks” if they
went near him; and not be responsible for his actions because he has PTSD.
Cf. State v. Hanes, 171 N.H. 173, 181 (2018) (looking to threatening language
used by defendant to establish his intent that his words would be understood
as a threat). Second, a police officer testified that the defendant said to him
that it would be “reasonable to say that his posts were putting a person at fear”
and that he “could see how [his posts] would put someone at fear.” Given the
threatening language used, and the defendant’s admission that his posts could
put someone “at fear,” we conclude that the evidence is sufficient to support
the trial court’s conclusion that the defendant acted recklessly when he issued
the true threats. Accordingly, we conclude that the defendant’s Facebook posts
are true threats unprotected by the First Amendment.

¶20 We conclude that the trial court did not err when it ruled that the
defendant’s Facebook posts constitute contact in violation of the protection
order, and that they are not constitutionally protected speech. Accordingly, the
trial court did not err when it found that the defendant violated the terms of his
probation and his suspended sentence, and imposed the corresponding
punishments for those offenses. We have considered the defendant’s

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remaining arguments and conclude that they do not warrant further
discussion. See Vogel v. Vogel, 137 N.H. 321, 322 (1993).

Affirmed.

BASSETT, DONOVAN, and COUNTWAY, JJ., concurred.

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