Nicholas Lee Carriveau, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

[1] Nicholas Lee Carriveau appeals his conviction for battery resulting in bodily injury to a public safety official as a level 5 felony. We affirm.

Facts and Procedural History

[2] In January 2024, Carriveau was an inmate at the St. Joseph County Jail. On January 21, 2024, during “medication pass”¹ in Carriveau's jail pod, Carriveau “went beyond the white line ․ multiple times while another inmate was receiving medication.” Transcript Volume II at 15. When Corporal Shalynn Jones informed Carriveau that he was violating the rules and commanded him to stop, he became “upset” and asked her why she “was targeting him.” Id. at 16. After Carriveau's behavior escalated, Corporal Jones and Patrolman Josh Voreis decided to place Carriveau in handcuffs and “remove him from the pod.” Id. at 17. The corrections officers wanted to do so to help “calm him down.” Id. at 18. As Patrolman Voreis was escorting Carriveau out of pod “B2,” Carriveau kicked Corporal Jones. Id. at 21.

[3] The two corrections officers “t[ook] [Carriveau] to the ground,” but he “did not stop. He did not follow instructions when [they] asked him to stop fighting ․ [h]e kept trying to be combative.” Id. While on the ground, Carriveau “was trying to somehow flip [Corporal Jones] over,” so a nurse who was present “called for backup.” Id. at 27. During the struggle on the ground, Patrolman Voreis “drew [his] Taser to tell [Carriveau] to stop moving. And as [they] were still wrestling around on the ground, [Patrolman Voreis's] finger gripped tight around the trigger for the dry stun.” Id. at 45. The dry stun occurred for “half a second.” Id. Carriveau “yelled” but did not follow any of the commands to “stop what he was doing.” Id.

[4] Five additional staff members arrived to assist, including Corporal Nicholas Merrill. As the staff members tried to lift Carriveau to his feet to place him in a “safety restraint chair,”² Carriveau kicked Corporal Merrill once in the left knee and once in the groin. Id. at 63. These kicks caused Corporal Merrill pain. After Carriveau kicked Corporal Merrill “in the testicles,” Corporal Merrill “performed a leg sweep” on Carriveau's right leg in order to “take him to the ground.” Id. at 69. Carriveau continued to resist until the staff members were able to finally place him in the safety restraint chair. The next day, Carriveau apologized to Patrolman Voreis about the incident, and he also apologized to Corporal Jones for kicking her and “lashing out.” Id. at 29.

[5] On February 22, 2024, the State charged Carriveau with battery resulting in bodily injury to a public safety official as a level five felony, attempted battery resulting in bodily injury to a public safety official as a level six felony, and battery against a public safety official as a level 6 felony. The level five felony alleged that Carriveau “knowlingly touch[ed] Nicholas Merrill, a public safety official, in a rude, insolent, or angry manner by kicking Nicholas Merrill in the testicles.” Appellant's Appendix Volume II at 15.

[6] The court held a jury trial on February 5, 2025. Carriveau testified on his own behalf and admitted that he kicked both Corporal Jones and Corporal Merrill. He testified that he remembered kicking Corporal Merrill “in the knee,” but stated that he “did not” strike Corporal Merrill “in the groin.” Transcript Volume II at 163-164. The jury found Carriveau guilty of the level five felony and not guilty of the two remaining charges. The court sentenced Carriveau to an aggregate five-year sentence, with two years to be served on home detention through community corrections followed by three years of probation.

Discussion and Decision

[7] Carriveau asserts that the trial court erred in instructing the jury. Specifically, he asserts that the court “failed to instruct the jury that the State must prove beyond a reasonable doubt that [he] acted voluntarily with respect to the actions which formed the basis for his conviction.” Appellant's Brief at 4. He asserts that the “evidence at trial raised a substantial issue as to whether [he] acted voluntarily” and thus “the failure of the Court to sua sponte give such an instruction was fundamental error.” Appellant's Brief at 7.

[8] Carriveau concedes that he failed to tender a voluntary conduct instruction. When a defendant asserts error in failure to give an instruction, a “tendered instruction is necessary to preserve error because, without the substance of an instruction upon which to rule, the trial court has not been given a reasonable opportunity to consider and implement the request.’ ” Ortiz v. State, 766 N.E.2d 370, 375 (Ind. 2002) (citing Mitchell v. State, 742 N.E.2d 953, 955 (Ind.2001)). “Failure to tender an instruction results in waiver of the issue for review.” Id.

[9] Carriveau attempts to avoid waiver by asserting fundamental error. “The fundamental error doctrine provides a vehicle for the review of error not properly preserved for appeal.” Id. The fundamental error exception to the waiver rule is “extremely narrow, and applies only when the error constitutes a blatant violation of basic principles, the harm or potential for harm is substantial, and the resulting error denies the defendant fundamental due process.” Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010) (quoting Mathews v. State, 849 N.E.2d 578, 587 (Ind. 2006)), reh'g denied. To be considered fundamental, the claimed error must make a fair trial impossible. Id. (citing Clark v. State, 915 N.E.2d 126, 131 (Ind. 2009), reh'g denied). Thus, this exception is available only in “egregious circumstances.” Id. (citing Brown v. State, 799 N.E.2d 1064, 1068 (Ind. 2003)).

[10] Ind. Code § 35-41-2-1(a) provides that “[a] person commits an offense only if he voluntarily engages in conduct in violation of the statute defining the offense.” Although voluntariness is not a statutory element of an offense, it is a “general element of criminal behavior,” Baker v. State, 208 N.E.3d 626, 638 (Ind. Ct. App. 2023), trans. denied, and it is an affirmative defense to criminal liability. Baird v. State, 604 N.E.2d 1170, 1176 (Ind. 1992). Therefore, if the evidence raises the issue of voluntariness, the State must prove the defendant acted voluntarily beyond a reasonable doubt. Id.

[11] Based upon our review of the record, we cannot say that the evidence presented at trial raised the issue of voluntariness. To the extent that Carriveau seems to suggest that the evidence indicated that he may have involuntarily kicked Corporal Merrill in the groin because he “did not receive his medication,” Appellant's Brief at 7, we disagree. During trial, Carriveau simply mentioned that he was “not stable without [his] meds,” and that being “off [his] meds” causes him to “black out,” but he admitted that he remembered the “majority” of the details of the incident, that he was in “control” of his “muscles” at the time, and that he was just having “a bad moment.” Transcript Volume II at 162, 166. Indeed, in closing argument, Carriveau's counsel made clear that Carriveau's defense was that he did not commit the offenses as charged, and that the corrections officers “all got together” to get their stories straight “before they wrote their reports” falsely incriminating Carriveau. Id. at 195, 205. Counsel made no suggestion that Carriveau was claiming that any of his behavior was not voluntary. Under the circumstances, we cannot say that a voluntary conduct jury instruction would have been warranted. See Baird v. State, 604 N.E.2d 1170, 1176 (Ind. 1992) (observing that in “most cases there is no issue of voluntariness and the State's burden is carried by proof of commission of the act itself). Carriveau has not met his burden to establish error, fundamental or otherwise.

[12] For the foregoing reasons, we affirm Carriveau's conviction.

[13] Affirmed.

FOOTNOTES

1.   During “medication pass,” inmates are given a verbal command to stand behind “the white line” to wait for their medication. Transcript Volume II at 13. In the case of disobedience, the verbal command is repeated, and if “an inmate does not follow that command,” the next step is to “remove the inmate.” Id. at 14.

2.   A safety restraint chair “is designed to ․ keep a defendant safe from causing harm to themselves or someone else” and “for staff safety if the defendant has been so combative that he is harming staff. So it restrains their wrists, their forearms, the legs, the waist, and the shoulders.” Transcript Volume II at 71.

Brown, Judge.

Felix, J., and Scheele, J., concur.