FILED Jul 27 2023, 8:28 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEYS FOR APPELLANTS ATTORNEYS FOR APPELLEE Paul E. Harold Theodore E. Rokita Stephen M. Judge Indiana Attorney General SouthBank Legal Jesse R. Drum South Bend, Indiana Deputy Attorney General Karen Lynch Conway Indianapolis, Indiana Conway Law, LLC South Bend, Indiana
IN THE COURT OF APPEALS OF INDIANA
Freeman Hochstetler, Willard July 27, 2023 Yoder, and Joe Hochstetler, Court of Appeals Case No. Appellants-Defendants, 22A-CR-2154 v. Appeal from the Elkhart Superior State of Indiana, Court Appellee-Plaintiff. The Honorable David Bonfiglio, Judge Trial Court Cause Nos. 20D06-2105-CM-981, 20D06-2105- CM-982, and 20D06-2105-CM-983
Opinion by Judge Riley Judges Bradford and Weissmann concur.
Riley, Judge.
Court of Appeals of Indiana | Opinion 22A-CR-2154 | July 27, 2023 Page 1 of 21 STATEMENT OF THE CASE [1] Appellants Freeman Hochstetler (Freeman), Willard Yoder (Yoder), and Joe
Hochstetler (Joe), (collectively, Defendants), appeal their convictions for
intimidation, a Class A misdemeanor, Ind. Code § 35-45-2-1(a)(1).
[2] We affirm.
ISSUES [3] Defendants present this court with three issues, which we restate and reorder as: (1) Whether the State proved beyond a reasonable doubt that
Defendants committed intimidation;
(2) Whether Defendants’ convictions are barred by the church
autonomy doctrine; and
(3) Whether Defendants waived their arguments that their
convictions are subject to strict scrutiny under the Free Exercise
Clause and the Indiana Religious Freedom Restoration Act
(IRFRA).
FACTS AND PROCEDURAL HISTORY [4] The Old Order Amish Church (OOAC) is a religious organization that has
members living in several counties in Indiana. The OOAC in Indiana is
divided into Districts. In 2016, J.W. and E.W. were members of OOAC
District 50 living with at least five of their seven children in LaGrange County.
The Indiana Department of Child Services (DCS) first became involved with
Court of Appeals of Indiana | Opinion 22A-CR-2154 | July 27, 2023 Page 2 of 21 the family in December 2016 after it received a report that the father, J.W., was
using inappropriate physical discipline in the home.
[5] DCS opened an informal adjustment with the family. E.W. and J.W. worked
with Amish support groups as well as DCS during the informal adjustment
period. A safety plan prohibiting J.W. from disciplining the children was
imposed, but J.W. violated the plan by directing E.W. to discipline the children
in the manner he preferred. The DCS informal adjustment ended in the spring
of 2017 with the filing of a CHINS petition after J.W. was arrested 1 for battery
against one of his children who was four or five years old at the time. In May
2017, E.W. and J.W. separated. DCS instituted a new safety plan for the
family. On May 31, 2017, a civil protective order (the protective order) 2 was
issued against J.W. in favor of E.W. and five of their minor children who were
still living at home.
[6] E.W. believed that to comply with DCS’s safety plan, she needed to keep J.W.
away from their children and keep the protective order active. DCS employees
told E.W. that if she had the protective order rescinded and there were further
1 Records from the CHINS proceedings have been included in the Appellants’ Appendix, but, because they were not admitted at trial, we do not consider them. The precise nature of the criminal charge against J.W. is not clear from the record; however, it is clear that J.W. was convicted of a criminal offense as a result of the charge. 2 There are references in the record to a no-contact order entered as part of J.W.’s criminal case, and, at times, the protective order was referred to at trial as a no-contact order. In our analysis, we refer only to the civil protective order.
Court of Appeals of Indiana | Opinion 22A-CR-2154 | July 27, 2023 Page 3 of 21 instances of abuse in the home, she was at risk of having her children removed
from her care. J.W. made no progress during the CHINS proceedings, but the
CHINS case was closed at the end of 2017 because DCS felt that E.W. would
adequately protect the children’s safety. In January 2018, E.W. moved with the
children to OOAC’s District 70-1, which is in Elkhart County. Initially,
although she was not formally made a new member, E.W. was welcomed in
District 70-1, and she took communion in the church there.
[7] It is the practice of the members of the OOAC not to involve secular authority
or law enforcement in their lives. Although it is unclear from the record
whether the members of District 50 were upset about J.W.’s abuse of his family
or that E.W. had procured a protective order against J.W. or both, some
members of District 50 supported E.W., while others did not. It is also a
practice of the OOAC that when there is strife or discord in a District, a panel
of three bishops from outside the District is formed to work with the
community to resolve whatever issue it is facing. Joe Hochstetler, Freeman
Hochstetler, and Daniel Hershberger (Hershberger), who are all bishops in the
OOAC, were empaneled in 2017 to work with District 50, a process which
began with the bishops discussing the matter with every family in the District.
[8] In August 2018, the two Hochstetlers and Hershberger met with E.W. to
pressure her to reconcile with J.W. After this meeting, Hershberger left the
panel, and Yoder took his place. In February 2020, the two Hochstetlers and
Court of Appeals of Indiana | Opinion 22A-CR-2154 | July 27, 2023 Page 4 of 21 Yoder—Defendants—and their wives met with E.W. at her home in Elkhart
County. E.W. told them she would not remove herself from the protective
order because doing so would violate DCS’s safety plan and would increase the
risk of her children being removed.
[9] Defendants returned to E.W.’s home on June 29, 2020, unannounced and
without their wives. Defendants advised E.W. that District 50 had voted the
previous day to place her in the Bann. 3 Being placed in the Bann in the OOAC
is a serious consequence to church members and meant that, although E.W.
could attend church, she could not take communion or participate in church
meetings, she could not serve herself at communal church meals, and her
money would not be accepted at Amish stores. When E.W. asked if she had
been banned for her refusal to remove herself from the protective order,
Freeman nodded his head, while Joe told E.W. that she had “put [her]self into
the ban [sic].” (Transcript Vol. II, p. 176). Defendants explained to E.W. that,
to have the Bann lifted, E.W. would have to remove her name from the
protective order. E.W. would also have to go to District 50, make a public
confession of fault, and start working with an entirely different support group.
3 “Being in the Bann” is how the Amish describe being excommunicated from the church. Erik Wesner, Shunning, AMISH AMERICA Blog, https://amishamerica.com/shunning/#bann (last visited July 6, 2023, 4:35 PM). “Shunning” refers to the practice of social exclusion and discipline that follows excommunication of a church member for thwarting church regulations or for committing other transgressions. Id.
Court of Appeals of Indiana | Opinion 22A-CR-2154 | July 27, 2023 Page 5 of 21 Although E.W. was open to attempting reconciliation with J.W., she was
unwilling to remove herself from the protective order.
[10] About four months later—with E.W. having taken no action to remove herself
from the protective order—the local Bishop of the District 70-1 church read a
letter from Defendants to the congregation. The letter announced to the
congregation that E.W. had been placed in the Bann in District 50, in part, for
her continued participation in the protective order. The letter specified that the
eventual lifting of the Bann was conditioned, in part, on E.W.’s removal from
the protective order.
[11] On May 28, 2021, the State filed Informations, charging Defendants with Class
A misdemeanor intimidation for communicating a threat to E.W. to expose her
to “hatred, contempt, disgrace, or ridicule, with the intent that [E.W.] engage in
conduct against her will, to wit: petition to remove herself from a protective
order[.]” (Amended App. Vol. II, p. 224). Defendants filed an unsuccessful
motion to dismiss the charges, arguing that their actions were protected by the
First Amendment and the church autonomy doctrine.
[12] During the ensuing bench trial, Defendants argued that their threatened
speech—the Bann—invoked a matter of public or general concern within the
OOAC community. Therefore, Defendants read Brewington v. State, 7 N.E.3d
946 (Ind. 2014), as requiring the State to prove actual malice. The State
vigorously defended against applying actual malice, arguing:
Court of Appeals of Indiana | Opinion 22A-CR-2154 | July 27, 2023 Page 6 of 21 E.W.’s decision to get a protective order is not and will not be a matter of public concern. It’s a private choice, a private exercise to protect her family, to shield her children, based on what DCS communicated to her. Even more generally, Your Honor, a decision to seek a protective order is a fundamentally private act.
(Tr. Vol. III, p. 19). Finding that actual malice did not apply, the trial court
convicted Defendants of intimidation.
[13] Defendants now appeal. Additional facts will be provided as necessary.
DISCUSSION AND DECISION I. Sufficiency of the Evidence
A. Standard of Review
[14] When reviewing claims of insufficiency of the evidence, we do not reweigh the
evidence or judge the credibility of witnesses. Runnells v. State, 186 N.E.3d
1181, 1184 (Ind. Ct. App. 2022). We look to the evidence and any resulting
reasonable inferences that support the verdict. Id. The conviction will be
affirmed if there is substantial evidence of probative value from which a
reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt. Id.
B. State’s Contentions
[15] We pause to address the State’s appellate contentions. At trial, Defendants
argued that their speech concerned issues of public or general concern,
triggering the requirement that the State prove actual malice. At trial, the State
Court of Appeals of Indiana | Opinion 22A-CR-2154 | July 27, 2023 Page 7 of 21 vigorously defended this position, but on appeal, without explanation, the State
reverses course. Now, the State joins Defendants in urging that their
convictions must be reversed because the evidence of actual malice is lacking.
[16] We acknowledge that this court has accepted concessions by the State that the
evidence does not support a conviction. See, e.g., Brent v. State, 957 N.E.2d 648,
652 (Ind. Ct. App. 2011) (reversing based on the State’s admission that it had
not presented evidence to support an element of the offense of visiting a
common nuisance, given that the court was not faced with any other legal
issued related to that conviction). However, here, the State attempts to concede
its case based on a question of law which is a matter for the courts, not the
State, to decide. In addition, we have long held that, even where the State
concedes error, it is “nevertheless the duty of this court to examine the record
and decide the law as applied to the facts.” Nash v. State, 433 N.E.2d 807, 810
(Ind. Ct. App. 1982); see also State v. Torres, 159 N.E.3d 1018, 1021 (Ind. Ct.
App. 2020) (noting that even when the appellee fails to file a brief, this court is
still obligated to correctly apply the law to the facts in the record). The State
does not present us with any authority indicating that we must accept its
concession. Therefore, despite the State’s change of stance, we will examine
the law and the facts before us to determine whether the evidence supports
Defendants’ convictions.
Court of Appeals of Indiana | Opinion 22A-CR-2154 | July 27, 2023 Page 8 of 21 C. Sufficient Evidence of Intimidation
[17] The State charged Defendants under Indiana Code section 35-45-2-1(a)(1),
which provides that “[a] person who communicates a threat with the intent . . .
that another person engage in conduct against the other person’s will” commits
Class A misdemeanor intimidation. The statute defines “threat” to mean “an
expression, by words or action, of an intention to . . . expose the person
threatened to hatred, contempt, disgrace, or ridicule.” I.C. § 35-45-2-1(c)(6).
And “[t]hreats are, by definition, expressions of an intention to do a future
thing[.]” Roar v. State, 52 N.E.3d 940, 943 (Ind. Ct. App.), adopted in relevant
part, Roar v. State, 54 N.E.3d 1001, 1002 (Ind. 2016). Indiana’s intimidation
statute criminalizes the present expression of an intent to expose another person
in the future to hatred, contempt, disgrace, or ridicule, with the intent that the
other person engages in conduct against her will. A defendant need not carry
out the threat to defame the victim to be guilty of intimidation. See, e.g., Gates v.
State, 192 N.E.3d 222, 226-27 (Ind. Ct. App. 2022) (finding evidence of
intimidation sufficient when evidence showed the defendant merely intended
the victim to believe he would carry out the threat but did not perform the
threatened conduct).
Court of Appeals of Indiana | Opinion 22A-CR-2154 | July 27, 2023 Page 9 of 21 [18] Citing Brewington, the parties contend that when threatened speech implicates a
matter of public or general concern, the State must prove actual malice. 4
Brewington, a dissatisfied divorce litigant, carried out a persistent and
prolonged crusade —including faxes (sometimes multiple per day), repetitive
pro se motions, and internet posts—accusing the parties’ psychologist evaluator
and the judge of “unethical” and “criminal” conduct. Brewington, 7 N.E.3d at
955-56. Faced with whether proof of actual malice was required for
Brewington’s intimidation conviction, our Supreme Court found that subpart
(c)(6) of the intimidation statute incorporates the classic common-law definition
of defamation into Indiana’s criminal code. Id. at 959. The Court therefore
concluded that “[t]he same constitutional free-speech protections that apply in
civil defamation cases . . . must also apply to prosecutions under (c)(6)[.]” Id. at
959.
[19] This means that the “actual malice” standard applies to speech about public
officials, such that the State may not seek to punish a defamatory statement
relating to the conduct of a public official, such as the judge, unless it proves
that the statement was made “with ‘knowledge that it was false or with reckless
disregard of whether it was false or not.’” Id. (quoting New York Times Co. v.
4 To bring their claim under the auspices of actual malice, the parties insist that the Bann is a matter of “public or general concern” within the Amish community. We make no determination as to whether a church congregation of seventy-five people constitutes a community from which we can find an issue of public or general concern.
Court of Appeals of Indiana | Opinion 22A-CR-2154 | July 27, 2023 Page 10 of 21 Sullivan, 376 U.S. 254, 279-80 (1964)). As to the psychologist, the Brewington
court, “out of an abundance of caution” that actual malice might apply,
assumed arguendo that the evaluator gave corrupt testimony for personal
gratification. Id. at 962. The Court noted that “[w]e have extended the
stringent New York Times standard to ‘defamation cases involving matters of
public or general concern,’ even if the victim is a private figure.” Id. at 962
(quoting Journal-Gazette, Co. v. Bandido’s, Inc., 712 N.E.2d 446, 449, 452 (Ind.
1999)).
[20] Clinging to the words “matters of public or general concern,” the parties argue
that the State had to prove actual malice because the Bann is a matter of public
or general concern within the Amish community. The parties’ reading of
Brewington is overbroad. Brewington applied actual malice to words Brewington
had already published in his internet posts, not to speech not yet uttered. We
do not read Brewington as requiring application of the actual malice standard to
hypothetical defamation.
[21] Brewington’s years-long campaign against the judge and the psychologist
provided the Court with a documented pattern of defamatory speech. The
Court was not forced to rely on conjecture about the content of unuttered
defamatory statements. Reading Brewington as the parties do – to require proof
of actual malice for possible future public speech – would prove unworkable.
Court of Appeals of Indiana | Opinion 22A-CR-2154 | July 27, 2023 Page 11 of 21 [22] Actual malice requires proof by clear and convincing evidence 5 that the
defendant published a defamatory statement “with knowledge that it was false
or with reckless disregard of whether it was false or not.” Bandido’s, 712 N.E.2d
at 456 (quoting New York Times Co., 376 U.S. at 279–80, 84 S. Ct. 71); see also
Taylor v. Antisdel, 185 N.E.3d 867, 875 (Ind. Ct. App. 2022), trans. denied.
Actual malice is based on the mindset of the defendant when the defamatory
words are communicated, not his intention while contemplating the defamatory
act. See Bandido’s, 712 N.E.2d at 456. In other words, inherent in actual malice
is the necessity for speech to be disseminated rather than merely threatened.
Defamation cases require a fact-sensitive inquiry involving the nature of the
words spoken and the context of their publication. New York Times Co., 376
U.S. at 285. Courts must
examine for ourselves the statements in issue and the circumstances under which they were made to see * * * whether they are of a character which the principles of the First Amendment, as adopted by the Due Process Clause of the Fourteenth Amendment, protect. We must ‘make an independent examination of the whole record,’, so as to assure ourselves that the judgment does not constitute a forbidden intrusion on the field of free expression.
Id. (citations omitted).
5 Arguably, in a criminal intimidation trial, the prosecutor would be put to the “beyond a reasonable doubt” burden of proof.
Court of Appeals of Indiana | Opinion 22A-CR-2154 | July 27, 2023 Page 12 of 21 [23] In the Bandido’s case, upon which Brewington relied, the restaurant sued a
newspaper for falsely reporting the establishment had rats. In analyzing actual
malice, our Supreme Court reviewed the health department’s warning about
disclosure, the newspaper’s provocative headlines, the performance of the
newspaper’s reporters in verifying the story, and the speed with which the
newspaper published the retraction of the story. Bandido’s, 712 N.E.2d at 456.
After reviewing these relevant facts, the Court concluded the restaurant failed to
show actual malice. We question whether the same analysis would have been
applied in Bandido’s had the newspaper editor merely threatened the restaurant
that it might publish an unfavorable story. In that scenario, determining
whether the future content of the speech and the context of possible publication
would be done with actual knowledge of its falsity or reckless disregard for the
truth would be an exercise in conjecture. It is unclear how a prosecutor would
prove actual malice for speech threatened but not yet uttered. To the extent the
parties seek to extend the actual malice standard from actual defamation to
threats of future defamation, we refuse to inject this type of unworkable
speculation into the criminal process.
[24] Like the trial court, we confine our review to the facts preceding and
surrounding Defendants’ threat and do not consider the later alleged
defamation. For almost two years, Defendants pressured E.W. to remove
herself from the protective order. In August 2018, two of the three defendants,
Court of Appeals of Indiana | Opinion 22A-CR-2154 | July 27, 2023 Page 13 of 21 Joe and Freeman Hochstetler, met with E.W., along with a third bishop,
Hershberger, to discuss the protective order and her possible reconciliation with
J.W. After this meeting, Hershberger left the panel, and Yoder took his place.
Thereafter, Defendants kept working with District 50. The members of District
70-1 also had differing opinions about whether E.W. should be supported and
whether she should be allowed to take communion. It was decided that E.W.
should remove herself, but not her children, from the protective order so that
E.W. and J.W. could meet in person to work with OOAC support towards
reconciliation.
[25] In February 2020, Defendants again visited E.W. at her home in Elkhart
County. Defendants came with their wives, as E.W. had requested because she
felt safer with the women present. Defendants informed E.W. that J.W. was
making progress with his behavior, and they asked what progress E.W. had
made in removing herself from the protective order. E.W. told Defendants that
she was unwilling to remove herself from the protective order because doing so
would violate DCS’s safety plan and would increase the risk of her children
being removed. Defendants resolved that the next step would be to speak with
DCS, an action which E.W. felt would resolve the matter. The consequences to
E.W. if she refused to remove herself from the protective order were not raised
at this meeting.
Court of Appeals of Indiana | Opinion 22A-CR-2154 | July 27, 2023 Page 14 of 21 [26] On June 29, 2020, Defendants returned to E.W.’s home in Elkhart County, this
time unannounced and without their wives. E.W. was at home with her
younger children, and two of her older children arrived during the meeting. At
trial, the State summarized the meeting as:
These Defendants came rip-roaring into [E.W.’s] home unannounced in June 2020; bullying tactics personified. Three intimidating men confronting a woman and kids in her own home, her own safe space, doing so, while knowing they felt -- that she felt safer if their wives came along.
(Tr. Vol. III, p. 17).
[27] The meeting occurred in the privacy of E.W.’s home and involved a private
matter, a protective order. Defendants communicated to E.W. that she was to
be placed “into the ban [sic].” (Tr. Vol. II, p. 176). When E.W. asked if she
had been banned for her refusal to remove herself from the protective order,
Freeman nodded his head, while Joe told E.W. that she had “put [her]self into
the ban [sic].” Id. Defendants explained to E.W. that to have the Bann lifted,
E.W. would have to remove her name from the protective order. Given the
Defendants’ pattern of behavior concerning the protective order, the content of
their threat, their choice to utter the threat within the confines of E.W.’s home
without the presence of their wives, and Defendants’ power and position with
the church, the State presented sufficient evidence that Defendants intimidated
E.W. on June 29, 2020.
Court of Appeals of Indiana | Opinion 22A-CR-2154 | July 27, 2023 Page 15 of 21 [28] The parties’ focus on Defendants’ execution of the threat is misplaced. Four
months after Defendants threatened to defame E.W. by placing her under the
Bann, they read the Bann in her new district. The four-month delay from the
issuance of the threat to the reading of the Bann to E.W.’s new congregation
reinforces the conclusion that Defendants committed the crime of intimidation
on June 29, 2020. Defendants sought to induce action by E.W., and then they
waited to see if their threats would bear fruit. Only after months passed without
the threat of the Bann having the desired effect did the Defendants publish the
Bann to the congregation. The implementation of the Bann is of no moment
because the crime of intimidation was complete upon utterance of the threat,
not upon its completion.
II. Church Autonomy Doctrine
[29] The First Amendment, which provides that “Congress shall make no law
respecting an establishment of religion, or prohibiting the free exercise
thereof[,]” guarantees the right of churches to decide matters concerning faith
and doctrine without government intrusion. Our Lady of Guadelupe Sch. v.
Morrissey-Berru, – U.S. – , 140 S.Ct. 2029, 2060, 207 L.Ed.2d 870 (2020)
(quotation omitted). The church autonomy doctrine gives effect to this
principle and “deals with a church’s First Amendment right to autonomy in
making decisions regarding its own internal affairs[,] including matters of faith,
doctrine, and internal governance.” Indiana Area Found. of United Methodist
Church, Inc. v. Snyder, 953 N.E.2d 1174, 1178 (Ind. Ct. App. 2011). Despite the
Court of Appeals of Indiana | Opinion 22A-CR-2154 | July 27, 2023 Page 16 of 21 fact that their communications with E.W. concerned in part the topic of her
removing herself from the civil protective order, a decidedly non-religious issue
which did not implicate OOAC doctrine or decision making, Defendants claim
that their actions were shielded by the church autonomy doctrine and that the
State’s prosecution was an impermissible incursion into “internal church
disciplinary and membership decisions, and the communication of those
decisions to a member[.]” (Appellants’ Br. p. 24).
[30] Defendants cite no cases wherein an Indiana appellate court has reversed a
criminal conviction based on the church autonomy doctrine. Indeed, there is
limited legal authority in Indiana on the application of the church autonomy
doctrine to allegations of criminal activity, but our supreme court has provided
some guidance. In Brazauskas v. Fort Wayne-South Bend Diocese, Inc., 796 N.E.2d
286 (Ind. 2003), Brazauskas was denied a position at the University of Notre
Dame after the pastor at her former church employer and a bishop at the
church’s Diocese had truthfully informed Notre Dame that she had sued them
after being terminated. Id. at 289. Brazauskas sued the Diocese and others for
tortious interference with a business relationship and under the blacklisting
statute, which made blacklisting a Class C infraction and provided for pursuing
penal damages through civil suit. Id. Our supreme court affirmed the trial
court’s dismissal based in part on the Free Exercise Clause and the church
autonomy doctrine. Id. at 293-94. The Brazauskas court noted, however, that
the “doctrine does, of course, have limits.” Id. at 293. The court detailed some
of those potential limits within the framework of the facts of the case by noting
Court of Appeals of Indiana | Opinion 22A-CR-2154 | July 27, 2023 Page 17 of 21 that the Free Exercise Clause would not prevent a successful prosecution for
conspiracy to commit a felony, even if the agreement involved a church
member or official and the agreement implicated ecclesiastical issues. Id. at 294
n.6. The court provided the example that the Free Exercise Clause would not
shield a defendant charged with conspiracy to commit murder through a
terroristic attack who claimed that the agreement to commit the offense was the
result of a discussion of church doctrine or policy. Id. In concluding that
plaintiff’s claims were barred, the court observed that “Brazauskas would have
us apply the blacklisting statute and tort law to penalize communication and
coordination among church officials . . . on a matter of internal church policy
and administration that did not culminate in any illegal act.” Id. at 294 (emphasis
added). We glean from this discussion and the example provided that our
supreme court has recognized that the church autonomy doctrine does not
shield those who engage in illegal activity.
[31] This limit on the church autonomy doctrine was recently re-iterated by the
Indiana Supreme Court in Payne-Elliot v. Roman Catholic Archdiocese of
Indianapolis, Inc., 193 N.E.3d 1009, 1012 (Ind. 2022), another civil employment
tort case in which Payne-Elliott filed suit against the Archdiocese after being
terminated from his teaching job at a catholic high school for marrying his
same-sex spouse. The Archdiocese invoked the defense of the church
autonomy doctrine, and the trial court dismissed Payne-Elliot’s complaint. Id.
On transfer from the court of appeals’ reversal, our supreme court held that
Payne-Elliot’s claims were barred by the doctrine. Id. at 1013-15. The court re-
Court of Appeals of Indiana | Opinion 22A-CR-2154 | July 27, 2023 Page 18 of 21 iterated its holding in Brazauskas that “the church-autonomy doctrine does not
provide an automatic per se defense simply because a religious organization
invokes it” and that “criminal conduct is not protected by the church-autonomy
doctrine—even if carried out using communications about church doctrine or
policy.” Id. at 1014.
[32] As set forth above, sufficient evidence supported Defendants’ convictions for
Class A misdemeanor intimidation, a criminal offense. See I.C. § 35-45-2-
1(a)(1). Pursuant to the court’s discussions in Brazauskas and Payne-Elliot, we
conclude that Defendants were not shielded from criminal liability for their
actions by the First Amendment or the church autonomy doctrine.
[33] In arguing otherwise, Defendants cite Cantwell v. Connecticut, 310 U.S. 296, 60
S.Ct. 900, 84 L.Ed. 1213 (1940), in which the Court overturned the convictions
of Jehovah’s Witnesses who had been distributing literature and soliciting
donations, concluding that the statute three of the defendants had been charged
under was not content neutral and constituted a prior restraint on the free
exercise of their religion. Id. at 301-04. The Cantwell Court expressly stated,
however, that “[n]othing we have said is intended even remotely to imply that,
under the cloak of religion, persons may, with impunity, commit frauds upon
the public. Certainly[,] penal laws are available to punish such conduct.” Id. at
306. The Court also reversed one of the defendants’ conviction pursuant to a
vague breach of the peace statute, concluding that simply sharing his religious
beliefs on the street was not conduct within the meaning of the common-law
offense with which he had been charged. Id. at 307-11. Thus, Cantwell was not
Court of Appeals of Indiana | Opinion 22A-CR-2154 | July 27, 2023 Page 19 of 21 decided on the grounds that the defendants’ convictions interfered with the
autonomy of their church, it does not directly support Defendants’ argument,
and it has not been cited by any Indiana court to overturn a criminal conviction
on the basis urged by Defendants.
[34] Defendants also draw our attention to the criminal offense which the Brazauskas
court indicated would not be shielded by the doctrine, namely conspiracy to
commit a murder through a terroristic act, and argue that “the court had in
mind crimes involving more than the mere communicative activity itself” and that
the church autonomy doctrine is only inapplicable when violent crimes are
alleged. (Appellants’ Br. p. 27) (emphasis in the original). However, absent
any further guidance on the subject by our supreme court, we decline to limit its
clear directive that “criminal conduct is not protected by the church-autonomy
doctrine—even if carried out using communications about church doctrine or
policy.” Payne-Elliot, 193 N.E.3d at 1014. Accordingly, we conclude that
Defendants’ convictions were not barred by the church autonomy doctrine.
III. Strict Scrutiny Under the Free Exercise Clause and IRFRA
[35] As a final challenge to their convictions, Defendants assert that their
prosecution for “communicating the ban[] to [E.W.] substantially burdens their
exercise of religion and is thus subject to strict scrutiny under the First
Amendment and [IRFRA].” (Appellants’ Br. p. 41). Although Defendants
contend that they “asserted the exercise of their religious beliefs as a defense to
the State’s prosecution” in the trial court, we have searched the record in vain
Court of Appeals of Indiana | Opinion 22A-CR-2154 | July 27, 2023 Page 20 of 21 for these precise arguments. (Appellants’ Br. p. 43). It is well-established that
an appellant may not raise issues for the first time on appeal and that failure to
raise an issue in the trial court results in waiver of an issue for our
consideration. See Leonard v. State, 80 N.E.3d 878, 884 n.4 (Ind. 2017) (finding
Leonard’s constitutional claim raised for the first time on appeal to be waived
and observing that declining to review a waived issue is a cardinal principle of
sound judicial administration). Accordingly, we conclude that Defendants
have waived these claims, and we do not address them.
CONCLUSION [36] Based on the foregoing, we hold that the evidence was sufficient to sustain
Defendants’ convictions for intimidation. We further hold that Defendants’
convictions were not barred by the church autonomy doctrine and that they
have waived their remaining claims.
[37] Affirmed.
Bradford, J. and Weissman, J. concur
Court of Appeals of Indiana | Opinion 22A-CR-2154 | July 27, 2023 Page 21 of 21