State and defense clash over whether online posts and a neighbor remark constituted a true threat in State v. Dinsmore

At oral argument in State v. Dinsmore, Deputy Prosecutor Michael Safestrom told the court the alleged crime must be assessed in context and that an escalation of online posts culminating in a June 1 remark to a neighbor could establish an intentional campaign of intimidation.

“We know the posts begin more general than they end up,” Safestrom said, arguing the postings moved from “passive abstraction to a more detailed plan” and that the defendant specifically referenced events around the weekend of June 18. He told the court the indictment alleges a course of conduct that provided “sufficient information” to the victim to allow a factfinder to infer the requisite mens rea.

Defense counsel Nicole Hay, representing respondent Tyler Dinsmore, countered that the Counterman standard centers on the speaker’s subjective mens rea and that the record does not show the June 1 statement by itself satisfies that requirement. Hay told the court the State did not argue at trial that the single statement on June 1 met Counterman and disputed that the online screenshots establish a chain linking the victim to those posts.

“If the theory of the state was one of a group of persons and not specifically L.S., it may be considered,” Hay said, but she maintained that the online statements were not directed to the neighbor and that the record lacks evidence the neighbor received or construed those statements as a threat.

Members of the bench pressed both sides on precedent and standards. One judicial voice emphasized that Counterman concerns the defendant’s recklessness or conscious disregard and noted courts have upheld convictions where threats were communicated indirectly in public fora; the judicial questioner also stressed that for a Napstead‑type motion the facts must be taken in the light most favorable to the State.

Hay pointed to Cohanan (as discussed in the briefing) to argue that broad public postings do not necessarily establish the substantial risk required by Counterman when there is no link showing the specific recipient was put on notice. Safestrom responded by citing State v. JM, saying the First Amendment does not require the defendant to know a threat will be communicated to the victim and that indirect communication can nonetheless be unprotected.

Safestrom characterized Dinsmore’s conduct as intentional and public: he argued the defendant repeatedly publicized anti‑gay material, reposted a flyer tied to a Pride‑related event scheduled for June 18, and directed comments out his window toward his immediate neighbor, creating the context for a factfinder to infer intent and risk disregarded.

Hay emphasized there is no record evidence that the neighbor (identified in the trial record as L.S.) followed the defendant’s social media or perceived the June 1 remark as a threat; she argued the State’s theory asks the court to infer too much from general online postings.

The court took the arguments under advisement. No written ruling or formal disposition was announced at the hearing’s close; the bench moved on to the next scheduled matter.