The opinion
[Cite as State v. Diebert, 2025-Ohio-2620.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
WOOD COUNTY
State of Ohio Court of Appeals No. WD-24-062
Appellee Trial Court No. 24CRB0153
v.
Michael Allen Diebert DECISION AND JUDGMENT
Appellant
Decided: July 25, 2025
*****
Karin L. Coble, for appellant.
Alyssa M. Blackburn, Prosecuting Attorney for appellee.
*****
SULEK, P.J.
{¶ 1} Appellant, Michael Diebert, appeals from the August 6, 2024 judgment of
the Bowling Green Municipal Court convicting him of violating a protection order. For
the following reasons, the trial court’s judgment is affirmed.
I. Background
{¶ 2} On October 25, 2023, the Wood County Common Pleas Court issued a civil
stalking protection order (CSPO) pursuant to R.C. 2903.214 prohibiting Diebert from
coming within 500 feet of T.K. or his wife, P.K. The order further required that if
Diebert “accidentally comes in contact with [T.K. or P.K.] in any public or private place,
[Diebert] must depart immediately.” (Emphasis in original.) Notably, the CSPO
expressly included “encounters on public and private roads, highways, and
thoroughfares.” The order was effective until April 25, 2024.
{¶ 3} On August 6, 2024, Diebert was tried for recklessly violating the CSPO in
violation of R.C. 2919.27(A), a first-degree misdemeanor, during an encounter that
occurred on November 25, 2023, a month after the CSPO was issued. The encounter
occurred near a pedestrian bridge located on East Water Street in North Baltimore,
approximately 500 feet west of Diebert’s home, that spans over a small creek. At the
trial, the following testimony and evidence was presented.
{¶ 4} T.K. testified that he was an 81-year-old resident of North Baltimore, Ohio,
a small town. He and his wife, P.K., frequently feed approximately 30 stray cats that live
around North Baltimore. T.K. and P.K. learned that some cats had been abandoned in an
area near the pedestrian bridge on East Water Street, so they began to leave cat food near
the bridge. T.K. testified that they had been feeding the cats near the bridge for
approximately one month before November 25, 2023.
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{¶ 5} On November 25, 2023, T.K. and P.K. were driving eastbound on Water
Street, intending to leave food for the cats on the west side of the pedestrian bridge. As
they approached the bridge, they saw a man walking eastbound along Water Street, also
toward the bridge. They did not know who he was at first because they initially saw only
the back of the man. As they neared the bridge, however, they passed the man and he
looked toward their vehicle. They realized the man was Diebert. T.K. said he was unsure
whether Diebert recognized them, but he observed Diebert begin recording video of their
vehicle, which he thought meant that Diebert must have recognized them. T.K. testified
that Diebert did not speak to them or make any gestures as he passed their vehicle.
{¶ 6} After they parked next to the bridge, T.K. and P.K. decided not to get out of
their vehicle right away, and instead they waited for Diebert to cross the bridge and leave.
T.K. testified that because they had a CSPO, they expected Diebert to leave the area right
away and not “dillydally.” T.K. said that Diebert did not leave right away, but instead
Diebert went to one side of the bridge “and pointed something, looked over his shoulder
and pointed something towards us and stood there for a few minutes.” Diebert then
crossed the bridge and did the same thing on the other side of the bridge before walking
away. T.K. testified that he was not sure if Diebert was pointing a gun at them, so T.K.
and P.K. waited inside their vehicle until Diebert “was well on his way” back to his house
before they got out to feed the cats.
{¶ 7} The state played a video that Diebert recorded with his cell phone as he was
walking along East Water Street toward the bridge that day. In the video, concrete
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barricades are visible where the bridge meets East Water Street on both sides to prevent
vehicles from driving onto the bridge. In the beginning of the video, a brown Toyota
SUV with an Ohio license plate beginning with DY9 passes Diebert on his right side as
he walks toward the bridge. The vehicle stops just before the barricade, about 10 seconds
after the video starts. Diebert continues walking on the left side of the street, passing the
stopped SUV without speaking or changing his pace, for approximately 20 seconds
before he reaches the barricades. He then steps around the barricades onto the bridge.
Once he gets onto the bridge, he stops and raises his binoculars and looks toward the
creek on the north side of the bridge for approximately 10 seconds. During those
seconds, Diebert’s camera is facing away from the SUV. He then turns around and walks
to the other side of the bridge, which takes him approximately 15 to 20 seconds, raises his
binoculars again, and looks toward the south side of the creek for approximately 15
seconds. During those 15 seconds, Diebert’s camera records the parked SUV. Diebert
then continues on his path, exiting the bridge and walking away from the SUV as he
points his camera over his left shoulder, recording the view behind him. In total,
Diebert’s two stops to look over the two sides of the bridge with his binoculars appear to
have delayed his path over the bridge by no more than 45 seconds.
{¶ 8} About 15 seconds after Diebert exits the bridge, a person is seen getting out
of the driver’s side of the SUV and waving at Diebert. Diebert pauses for approximately
10 seconds as the person walks around the front of the SUV to the south side of the street,
near the creek, and is then followed by a second person. Diebert then resumes walking
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along the street without pausing or otherwise changing his pace while continuing to
record video over his shoulder. At no point during the entire video, which is just over 3
minutes long, is anyone heard speaking.
{¶ 9} T.K., on cross-examination, admitted that he did not contact the police about
his encounter with Diebert until more than two weeks after it occurred because he had not
realized that Diebert’s actions could be a violation of the CSPO. T.K. also confirmed that
he told the police that Diebert stopped on the bridge for five to ten minutes, which T.K.
conceded was not true. T.K. explained that it just felt that long while he was waiting in
his vehicle for Diebert to leave the bridge. T.K. also admitted that when he reported
Diebert’s actions to the police, he did not tell the police that he thought Diebert might
have had a gun, and instead he told the police that Diebert pointed a camera at them.
{¶ 10} Officer Brad McBride, a police officer with the North Baltimore police
department, also testified. Through a search warrant, Officer McBride obtained a video
from a home security camera mounted on the exterior of Diebert’s home. The camera
pointed down East Water Street toward the west, in the direction of the bridge. Unlike
Diebert’s cell phone recording, this video did not have any audio.
{¶ 11} The security video is largely similar to Diebert’s cell phone video, though
the security video has a few details not present in the cell phone video. The security
video shows Diebert walking with a cell phone at just above shoulder height as he walks
away from the bridge. Upon reaching his property, Diebert spends a short time looking
at an object on a tree, then walks toward his home and out of the camera view,
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approximately five minutes into the video. Diebert is never again visible in the video,
and about five minutes after Diebert disappears from view, the SUV is seen turning
around and driving away.
{¶ 12} Officer McBride testified that police also found a log in which Diebert
recorded entries of the dates and times when Diebert observed either T.K.’s or P.K’s
vehicles near his home, including instances in which they were parked at a neighbor’s
house, at the bridge, or just driving past Diebert’s home. Diebert also included a
description of the vehicle in each entry. Officer McBride testified that there were 16
different entries in the log in which Diebert had recorded that he had observed T.K. or
P.K. driving the same vehicle as the one that they drove in the video from November 25,
2023.
{¶ 13} On cross-examination, however, Officer McBride confirmed that his police
report about the November 25, 2023 encounter states that T.K. and P.K. were driving a
gray SUV with a license plate beginning with DLB, which Officer McBride also
confirmed matched the vehicle listed 16 times in Diebert’s logs. Though Officer
McBride initially maintained that the gray SUV with the license plate beginning with
DLB was the same vehicle as in Diebert’s cell phone video, after viewing the cell phone
video for a second time while on the stand, he admitted that the SUV in the video had a
different license plate than the one in his police report. Instead of a license plate
beginning with the letters DLB, which was the license plate number in Officer McBride’s
report, the license plate for the vehicle in the video began with DY8. Nonetheless,
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Officer McBride maintained that he had run a registration check on the license plate
beginning with DY8, and the registration showed a Toyota registered to T.K. and P.K.,
though he did not clarify whether the registration indicated that the vehicle was brown, as
it appears in the video, or dark gray as in the police report, testifying only that the
registration was for a “dark colored” vehicle.
{¶ 14} Officer McBride also testified that the protection order did not prohibit
Diebert from recording video, nor did it require Diebert to leave his home if T.K. or P.K.
came within 500 feet of it. Officer McBride also said that the requirement to leave
“immediately” may impose different requirements depending on the circumstances.
{¶ 15} Following Officer McBride’s testimony, the state rested and Diebert moved
for acquittal pursuant to Civ.R. 29. The trial court denied the motion.
{¶ 16} Diebert then testified. He testified that he was 67 years old, retired, and he
takes walks once or twice a day because he had two knee replacements and a hip
replacement. Diebert said he prefers to head west of his house to walk along East Water
Street because the bridge is closed to vehicular traffic, making that route safer than
others. On November 25, 2023, Diebert went for a walk, bringing with him his
binoculars to observe wildlife as well as his cell phone. Diebert testified that he records
videos whenever he “goes out anymore … to protect [him]self” from false accusations.
{¶ 17} As he was walking westbound, he noticed cat food on the ground near the
bridge, so he thought that T.K. and P.K. had already fed the cats that day. Diebert took a
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photo of the cat food, and the photo, which appears to show cat food lying in a gravel
area next to trees and other vegetation, was admitted into evidence.
{¶ 18} After crossing the bridge and walking for a while, Diebert turned around
and headed eastbound, back toward his house. As he neared the bridge, he heard a
vehicle approaching him from behind, so he turned his cell phone camera on. As the
vehicle passed, he noticed that the vehicle was “chocolatey-brown” and he did not
recognize the license plate number, so he turned his cell phone camera around to record
the license plate. Diebert denied that he had ever seen P.K. or T.K. in that vehicle. He
explained that in the past, he had always seen P.K. driving a gray SUV with a different
license plate number—the same one as in the police report—and T.K. driving a blue
Jeep. Diebert also maintained he did not look at the car, and instead he turned his camera
around to record the license plate.
{¶ 19} Diebert continued walking until he got onto the bridge, which is when he
stopped to look through his binoculars at wildlife near the creek on either side of the
bridge. Diebert left the bridge and continued on his path home. He paused a third time at
the intersection near Harrison Street, again to inspect the tree line near the creek for
wildlife, which is when he saw a woman get out of the vehicle and wave at him. Diebert
recognized the woman as P.K., and that is when he finally realized the people in the SUV
were T.K. and P.K. Diebert then continued walking to his property, where he stopped at
the tree to inspect a squirrel feeder.
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{¶ 20} After deliberations, the jury found Diebert guilty of violating the protection
order. His sentence included a fine that was reduced in half upon Diebert’s completion of
anger management classes; an order prohibiting him from contact with the victims; a
180-day prison sentence, which the court suspended; and five years of community
control. This appeal followed.
II. Assignment of Error
{¶ 21} Diebert asserts the following assignments of error for review:
1. The verdict was unsupported by sufficient evidence and was therefore a
violation of Due Process as guaranteed by the 5th and 14th Amendments
to the U.S. Constitution and Article I, Section 16 of the Ohio
Constitution.
2. The conviction was against the manifest weight of the evidence.
III. Law and Analysis
{¶ 22} Diebert’s two assignments of error challenge the sufficiency of the
evidence to support the verdict and the weight of the evidence to support his conviction.
“Insufficiency and manifest weight are distinct legal theories.” State v. Fenderson, 2022-
Ohio-1973, ¶ 73 (6th Dist.). “In reviewing a record for sufficiency, ‘[t]he 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.’” Id., quoting State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two
of the syllabus.
{¶ 23} In contrast, when reviewing a manifest weight claim,
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[t]he court, reviewing the entire record, weighs the evidence and all
reasonable inferences, considers the credibility of witnesses and determines
whether in resolving conflicts in the evidence, the jury clearly lost its way
and created such a manifest miscarriage of justice that the conviction must
be reversed and a new trial ordered. The discretionary power to grant a
new trial should be exercised only in the exceptional case in which the
evidence weighs heavily against the conviction.
Id., quoting State v. Lang, 2011-Ohio-4215, ¶ 220, quoting State v. Thompkins, 78 Ohio
St.3d 380, 387 (1997).
{¶ 24} Diebert was convicted of violating R.C. 2919.27(A)(2), which provides that
“[n]o person shall recklessly violate the terms of . . . [a] protection order issued pursuant
to section . . . 2903.214 of the Revised Code.” The statutory definition of “recklessly” is
as follows:
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. A person is reckless with respect to circumstances when,
with heedless indifference to the consequences, the person disregards a
substantial and unjustifiable risk that such circumstances are likely to exist.
R.C. 2901.22(C). Accordingly, the state needed to present evidence that Diebert
disregarded a substantial and unjustifiable risk with heedless indifference to the
consequences in violating the CSPO. Here, the state alleged that Diebert violated the
CSPO by failing to depart immediately after he came into contact with P.K. and T.K., and
therefore the issue on appeal is whether the state met its burden to demonstrate that
Diebert’s conduct on the bridge constituted a disregard for a substantial and unjustifiable
risk with heedless indifference to the consequences.
10.
{¶ 25} Diebert argues that the verdict was not supported by sufficient evidence
because he did not initiate the encounter, and when P.K. and T.K. drove near him, he
acted reasonably by continuing to walk home. Diebert further contends he was not
reckless in “pausing” a few times while walking home because his pauses lasted only
seconds. Diebert claims that his actions fall far short of the actions of others whose
convictions for violating a protection order were affirmed.
{¶ 26} The state responds that Diebert’s actions were reckless because he
disregarded a substantial and unjustifiable risk that he was violating the CSPO. In
support, the state alleges “Diebert looked into [the] victims’ car when he walked past,
proceeded to the bridge, and instead of continuing home, he stopped on the bridge and
looked around for several minutes[,] … all … while recording the victims.” The state
also contends that a protection order may be violated even without a verbal or lengthy
encounter.
{¶ 27} In reply, Diebert alleges that the purpose of a CSPO is to prevent
intimidation, harassment, or mental distress, and he maintains that he engaged in no
threatening conduct in his encounter with T.K. and P.K. and they were not intimidated, as
evidenced by P.K.’s wave to him that day and their delay in recognizing a violation may
have occurred. He also points out that P.K. and T.K. approached the bridge after he was
already walking in that direction, and the only way for Diebert to get home and thus
depart the area was to cross the bridge, which he did on his own without any prompting.
Diebert contends that the length of time he paused on the bridge is essential in
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determining whether his actions were reckless, and a delay of less than a minute cannot
be reckless.
{¶ 28} What constitutes recklessness in failing to “immediately” depart is fact
specific and varies depending on the surrounding circumstances. For example, a
conviction for violating a protection order was affirmed where the appellant encountered
the protected person at a gas station store and remained in his vehicle in the parking lot
for “possibly as long as five minutes before leaving.” N. Olmsted v. Rieck, 2011-Ohio-
1557, ¶ 18 (8th Dist.). In another case, the appellant attended his grandchild’s birthday
party and remained there for 10 minutes after he became aware that the protected person
was also at the party. State v. Mays, 2023-Ohio-1908, ¶ 37 (6th Dist.). And in another
case, the appellant encountered a protected person in the park, made eye contact with the
person, and then remained there for five minutes until two police officers happened by.
Lyndhurst v. Smith, 2015-Ohio-303, ¶ 52 (8th Dist.). Accordingly, even a short delay in
leaving the protected person’s presence is sufficient to constitute a violation.
{¶ 29} Here, the state presented evidence that Diebert knew that T.K. and P.K.
were in the SUV. P.K. and T.K. had been regularly feeding cats near a pedestrian bridge
closed to vehicular traffic for about a month before the incident on November 25, 2023.
Not only was Diebert aware of that practice, but he kept a log and other documentation,
including photos, of P.K. and T.K.’s movements. T.K. also testified that Diebert looked
inside the vehicle as he walked past it, additional circumstantial evidence to support that
Diebert knew that P.K. and T.K. were in the vehicle. The state also presented evidence
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that Diebert “paused” multiple times on his walk home to look at wildlife with his
binoculars, a recreational activity that he began only after he became aware that P.K. and
T.K. were inside the vehicle and that was unnecessary to complete his journey home.
Given this evidence, the jury could have found that Diebert was reckless in failing to
immediately depart.
{¶ 30} Further, contrary to Diebert’s arguments, the state did not need to establish
that T.K. and P.K. felt intimidated, were harassed, or experienced mental distress to
prove that he recklessly violated a CSPO.1 See R.C. 2919.27(A). Indeed, “[i]t is not an
element of R.C. 2919.27(A)(1) that individuals protected by a protection order feel fear
when a defendant violates the order.” State v. Estep, 2022-Ohio-245, ¶ 24 (12th Dist.),
citing State v. Thacker, 2020-Ohio-1318, ¶ 65 (12th Dist.); see also Toledo v. Lear, 2018-
Ohio-1874, ¶ 15 (6th Dist.) (“R.C. 2919.27(A) can be violated without causing or
threatening to cause harm to the victim.”). Neither did the state need to establish that
Diebert initiated the encounter. See State v. Sims, 2018-Ohio-769, ¶ 48 (2d Dist.).
Instead, the state only had to present evidence that Diebert “disregarded a known risk that
his conduct was likely to place him …within 500 feet of [P.K. and T.K.].” State v.
Tarver, 2012-Ohio-4335, ¶ 58 (11th Dist.). Because the state presented evidence from
1
Moreover, the terms of the CSPO are not at issue in this appeal, and the CSPO’s terms
contain no caveats or exceptions that permit Diebert to come within 500 feet of T.K. and
P.K. so long as he does not engage in any intimidating, threatening, or harassing
behavior, nor does the CSPO predicate its restrictions on T.K.’s or P.K.’s emotional or
mental state.
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which a reasonable trier of fact could conclude that Diebert was reckless in failing to
depart from T.K. and P.K.’s presence immediately, the jury’s verdict was supported by
sufficient evidence, and Diebert’s first assignment of error is not well-taken.
{¶ 31} In his next assignment of error, Diebert challenges his conviction as against
the manifest weight of the evidence. Diebert contends that the weight of the evidence
supports that he did not know that T.K. and P.K. were in the vehicle and therefore his
short pauses to look at wildlife could not have been reckless. Diebert testified that he
saw cat food by the bridge earlier in his walk, he did not look into the SUV as he passed
it but merely recorded the license plate number, he had never seen T.K. and P.K. in a
vehicle of that color or with that license plate number, and he did not realize that T.K.
and P.K. were in the vehicle until P.K. waved at him after he had already crossed the
bridge, after which time he walked straight home. Diebert also points to the
contradictions regarding the license plate and the vehicle’s color in the police report,
Officer McBride’s testimony, and the cell phone video, arguing that the contradiction
demonstrates that he had no idea that T.K. and P.K. were in the nearby parked SUV when
he stopped to look at the wildlife.
{¶ 32} Despite these inconsistencies, the jury could have determined that Diebert’s
testimony that he did not know that T.K. and P.K. were in the vehicle was not credible.
Diebert was very familiar with T.K. and P.K.’s habits in feeding the cats near the
bridge—as evidenced by his log of their movements and the photo of the cat food he took
earlier in his walk—so even if he had never seen the particular vehicle at issue, Diebert
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had reason to believe that T.K. and P.K. were inside a vehicle that parked next to the
pedestrian bridge. Indeed, Diebert only began taking video of his walk—ensuring that he
captured the vehicle’s license plate in particular—when he heard the SUV approaching
the bridge. Moreover, the jury could have found T.K.’s testimony that Diebert looked
inside the vehicle more credible than Diebert’s testimony that he did not do so,
particularly in light of Diebert’s efforts to record the vehicle’s license plate and the SUV
as he walked away.
{¶ 33} This is not the exceptional case in which the jury clearly lost its way and
the evidence weighs heavily against the conviction. Diebert’s second assignment of error
is not well-taken.
IV. Conclusion
{¶ 34} For the foregoing reasons, the judgment of the Bowling Green Municipal
Court is affirmed. Diebert is ordered to pay the costs of this appeal pursuant to App.R.
24.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See, also, 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J.
JUDGE
Gene A. Zmuda, J.
JUDGE
Charles E. Sulek, P.J.
CONCUR JUDGE
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This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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