Tervarus L. Gary v. State of Indiana

── Tervarus L. Gary v. State of Indiana ── Court: Indiana Supreme Court Date: April 09, 2026 Author: Derek Molter Category: General IN THE Indiana Supreme Court Supreme Court Case No. 25S-CR-265 FILED Apr 09 2026, 1:08 pm Tervarus L. Gary, CLERK Indiana Supreme Court Appellant Court of Appeals and Tax Court –v– State of Indiana, Appellee Argued: December 18, 2025 | Decided: April 9, 2026 Appeal from the Elkhart Superior Court No. 20D01-2405-F5-140 The Honorable Kristine A. Osterday, Judge On Petition to Transfer from the Indiana Court of Appeals No. 24A-CR-2712 Opinion by Chief Justice Rush Justices Massa, Slaughter, Goff, and Molter concur. Rush, Chief Justice. Correctional institutions face persistent challenges in ensuring the safety of both inmates and staff, particularly when dangerous materials infiltrate their facilities. Our Legislature has therefore criminalized the possession of such materials by incarcerated individuals. But, as with any crime, liability attaches only if an inmate voluntarily engages in the prohibited conduct. This case requires us to reconcile that requirement with the restricted freedom detention necessarily entails. Here, after a defendant’s arrest and placement in a jail cell, he realized he had a small canister of pepper spray in his pocket. Although he ultimately alerted officers to its presence, he did not comply with their initial efforts to retrieve it. As a result, the State charged him under a statute prohibiting incarcerated individuals from possessing material capable of causing bodily injury, and a jury found him guilty. On appeal, he challenges the sufficiency of the evidence supporting his conviction, asserting that he did not knowingly possess the pepper spray in jail because his entry into the facility—and thus his continued possession there—was not voluntary. We disagree. Under the relevant statute, even if an arrestee involuntarily brings prohibited material into a penal facility, the failure to relinquish it at the earliest reasonable opportunity is a voluntary act that may subject them to criminal liability. Because the State presented sufficient evidence that the defendant failed to do so here, we affirm his conviction. Facts and Procedural History Viewed in the light most favorable to the verdict, the evidence presented to the jury showed the following unusual sequence of events, which began in the early morning and unfolded over the next seven hours, giving rise to Tervarus Gary’s conviction. Around 3:00 a.m., after a night of partying that included drug use, Gary woke up on the couch at a friend’s house to the sound of a police officer Indiana Supreme Court | Case No. 25S-CR-265 | April 9, 2026 Page 2 of 9 repeatedly saying his name. The officer tried to question him, but Gary’s level of impairment made that difficult. When Gary refused to comply with the officer’s commands to leave the house, the officer and his partner picked Gary up off the couch, placed him in handcuffs, and conducted a preliminary search. He was wearing two pairs of pants, including one pair that was “really loose,” which made the search difficult. But an officer recovered from one of Gary’s pockets a pipe used to ingest methamphetamine. Gary was passively noncompliant as the officers took him into custody. Outside the house, he refused to walk on his own or place his legs inside the police car, so the officers had to physically assist him before transporting him to the local jail. Then, once they arrived and parked inside the jail’s intake garage, Gary twice refused to exit the car. After two officers helped him out of the vehicle, four officers li