Riley, J.
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).
We affirm.
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).
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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 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…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.
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).
Citing Brewington, the parties contend that when threatened speech implicates a matter of public or general concern, the State must prove actual malice. 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.
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. 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)).
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.
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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, 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.
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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.
Church Autonomy Doctrine
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 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). 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).
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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-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.
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.
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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.
Strict Scrutiny Under the Free Exercise Clause and IRFRA
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 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.
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.
Affirmed.
Bradford, J. and Weissman, J. concur.