IN THE
Court of Appeals of Indiana FILED Tervarus L. Gary, Jun 23 2025, 9:33 am
CLERK Appellant-Defendant, Indiana Supreme Court Court of Appeals and Tax Court
v.
State of Indiana, Appellee-Plaintiff.
June 23, 2025
Court of Appeals Case No. 24A-CR-2712
Appeal from the Elkhart Superior Court
The Honorable Kristine A. Osterday, Judge
Trial Court Cause No. 20D01-2405-F5-140
Court of Appeals of Indiana | Opinion 24A-CR-2712 | June 23, 2025 Page 1 of 9 Opinion by Senior Judge Baker Judges Mathias and DeBoer concur.
Baker, Senior Judge.
Statement of the Case [1] Tervarus Gary appeals from his conviction of Level 5 felony possessing
material capable of causing bodily injury by an inmate, contending that there is
insufficient evidence to support his conviction. Agreeing that the State did not
present sufficient evidence of the actus reus requirement to rebut his affirmative
defense of absence of voluntariness, we reverse Gary’s conviction.
Facts and Procedural History [2] On November 5, 2023, police were called to remove Gary from a home where
he was found intoxicated by fentanyl, methamphetamine, or both. Officers
who arrested him considered him to be passively noncompliant, meaning in
this case that he was limp, “like a rag doll[.]” Tr. Vol. 2, p. 177. Corporal
Steven Jones of the Elkhart City Police Department testified that officers had to
help Gary move along and walk him out to the patrol car. And when they
asked him to put his feet in the vehicle, he replied that they were, even though
his feet were dangling out of the vehicle. Gary was described as “[j]ust very
quiet.” Tr. Vol. 3, p. 77. During a search before transporting him to the jail,
the officers found that he possessed a methamphetamine pipe and seized it.
Court of Appeals of Indiana | Opinion 24A-CR-2712 | June 23, 2025 Page 2 of 9 [3] Even though he was conscious, Gary’s body remained limp when he arrived at
the jail. Deeming him noncompliant, four officers carried him, and another
officer escorted them as they walked past a search room into the booking area
of the jail. The officers placed him directly into a dry cell, a cell without any
water fixtures in it, without conducting a search or patting him down. Corporal
Jones testified that Gary could have been restrained and searched while he was
lying down as long as other officers were around, but that was not done in this
case even though there were several officers there. The officers decided to wait
until Gary was deemed compliant to restrain him and conduct a thorough
search.
[4] At some point while in the dry cell, Gary pressed the intercom button and told
the jail staff in the master control center that he had a knife and a starter kit. By
starter kit, he meant a can of pepper spray and a lighter. When officers went to
the window of his cell, he showed them the can of pepper spray and asked to
make a phone call. The officers commanded him to place the pepper spray on
the bench, kneel down facing away from the door, and put his hands behind his
head. Gary refused and officers saw what appeared to be pepper spray at the
base of the door. Gary testified that he was trying to force the can of pepper
spray underneath the door and some pepper spray came out in the process.
Nevertheless, Gary did not place the can on the bench, and the officers then
used pepper spray to make Gary comply with their commands. The officers
entered the cell, seized Gary’s can of pepper spray and attempted to take him
through a body scanner. After failed attempts to gain compliance, the officers
Court of Appeals of Indiana | Opinion 24A-CR-2712 | June 23, 2025 Page 3 of 9 took him through another scanner where they discovered and seized a lighter.
Roughly the same number of officers was involved in this search as were
present when Gary was initially brought to the jail.
[5] The State charged Gary with Level 5 felony possessing material capable of
causing bodily injury by an inmate. A jury convicted him of the charge and the
trial court sentenced him to four years executed in the Department of
Correction.
Discussion and Decision [6] Gary appeals, contending there is insufficient evidence to support his
conviction, particularly the actus reus requirement. When reviewing the
sufficiency of the evidence to support a conviction, we do not reweigh the
evidence or judge the credibility of the witnesses, and we respect the fact-
finder’s exclusive province to weigh conflicting evidence. Jackson v. State, 925
N.E.2d 369, 375 (Ind. 2010). We consider only the probative evidence and
reasonable inferences therefrom that support the conviction. Id. We will affirm
if the probative evidence and reasonable inferences from that evidence could
have allowed a reasonable trier of fact to find the defendant guilty beyond a
reasonable doubt. Id.
[7] To convict Gary of Level 5 felony possessing material capable of causing bodily
injury by an inmate, the State was required to establish beyond a reasonable
doubt that Gary knowingly or intentionally while incarcerated in a penal
facility possessed a device, equipment, a chemical substance, or other material
Court of Appeals of Indiana | Opinion 24A-CR-2712 | June 23, 2025 Page 4 of 9 that is used or is intended to be used in a manner that is readily capable of
causing bodily injury. See Ind. Code § 35-44.1-3-7 (2014).
[8] Gary contends that his conviction must be reversed because he did not
voluntarily possess the pepper spray in jail. “A person commits an offense only
if he voluntarily engages in conduct in violation of the statute defining the
offense.” Ind. Code § 35-41-2-1(a) (1983). And “[i]f possession of property
constitutes any part of the prohibited conduct, it is a defense that the person
who possessed the property was not aware of his possession for a time sufficient
for him to have terminated his possession.” Ind. Code § 35-41-2-1(b) (1983).
Thus, though 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..
[9] The State argues that the outcome of this appeal is controlled by this Court’s
decision in Baker v. State. In Baker, a police officer stopped the driver of a truck
for a seatbelt violation. While the officers were gathering information from the
passengers of the truck, Baker provided false identification information. The
officer eventually discovered her true identity and also discovered there was an
active warrant for her arrest. After Baker and the other female passenger, who
also had an active warrant for her arrest, were searched, the officer informed
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IN THE
Court of Appeals of Indiana FILED Tervarus L. Gary, Jun 23 2025, 9:33 am
CLERK Appellant-Defendant, Indiana Supreme Court Court of Appeals and Tax Court
v.
State of Indiana, Appellee-Plaintiff.
June 23, 2025
Court of Appeals Case No. 24A-CR-2712
Appeal from the Elkhart Superior Court
The Honorable Kristine A. Osterday, Judge
Trial Court Cause No. 20D01-2405-F5-140
Court of Appeals of Indiana | Opinion 24A-CR-2712 | June 23, 2025 Page 1 of 9 Opinion by Senior Judge Baker Judges Mathias and DeBoer concur.
Baker, Senior Judge.
Statement of the Case [1] Tervarus Gary appeals from his conviction of Level 5 felony possessing
material capable of causing bodily injury by an inmate, contending that there is
insufficient evidence to support his conviction. Agreeing that the State did not
present sufficient evidence of the actus reus requirement to rebut his affirmative
defense of absence of voluntariness, we reverse Gary’s conviction.
Facts and Procedural History [2] On November 5, 2023, police were called to remove Gary from a home where
he was found intoxicated by fentanyl, methamphetamine, or both. Officers
who arrested him considered him to be passively noncompliant, meaning in
this case that he was limp, “like a rag doll[.]” Tr. Vol. 2, p. 177. Corporal
Steven Jones of the Elkhart City Police Department testified that officers had to
help Gary move along and walk him out to the patrol car. And when they
asked him to put his feet in the vehicle, he replied that they were, even though
his feet were dangling out of the vehicle. Gary was described as “[j]ust very
quiet.” Tr. Vol. 3, p. 77. During a search before transporting him to the jail,
the officers found that he possessed a methamphetamine pipe and seized it.
Court of Appeals of Indiana | Opinion 24A-CR-2712 | June 23, 2025 Page 2 of 9 [3] Even though he was conscious, Gary’s body remained limp when he arrived at
the jail. Deeming him noncompliant, four officers carried him, and another
officer escorted them as they walked past a search room into the booking area
of the jail. The officers placed him directly into a dry cell, a cell without any
water fixtures in it, without conducting a search or patting him down. Corporal
Jones testified that Gary could have been restrained and searched while he was
lying down as long as other officers were around, but that was not done in this
case even though there were several officers there. The officers decided to wait
until Gary was deemed compliant to restrain him and conduct a thorough
search.
[4] At some point while in the dry cell, Gary pressed the intercom button and told
the jail staff in the master control center that he had a knife and a starter kit. By
starter kit, he meant a can of pepper spray and a lighter. When officers went to
the window of his cell, he showed them the can of pepper spray and asked to
make a phone call. The officers commanded him to place the pepper spray on
the bench, kneel down facing away from the door, and put his hands behind his
head. Gary refused and officers saw what appeared to be pepper spray at the
base of the door. Gary testified that he was trying to force the can of pepper
spray underneath the door and some pepper spray came out in the process.
Nevertheless, Gary did not place the can on the bench, and the officers then
used pepper spray to make Gary comply with their commands. The officers
entered the cell, seized Gary’s can of pepper spray and attempted to take him
through a body scanner. After failed attempts to gain compliance, the officers
Court of Appeals of Indiana | Opinion 24A-CR-2712 | June 23, 2025 Page 3 of 9 took him through another scanner where they discovered and seized a lighter.
Roughly the same number of officers was involved in this search as were
present when Gary was initially brought to the jail.
[5] The State charged Gary with Level 5 felony possessing material capable of
causing bodily injury by an inmate. A jury convicted him of the charge and the
trial court sentenced him to four years executed in the Department of
Correction.
Discussion and Decision [6] Gary appeals, contending there is insufficient evidence to support his
conviction, particularly the actus reus requirement. When reviewing the
sufficiency of the evidence to support a conviction, we do not reweigh the
evidence or judge the credibility of the witnesses, and we respect the fact-
finder’s exclusive province to weigh conflicting evidence. Jackson v. State, 925
N.E.2d 369, 375 (Ind. 2010). We consider only the probative evidence and
reasonable inferences therefrom that support the conviction. Id. We will affirm
if the probative evidence and reasonable inferences from that evidence could
have allowed a reasonable trier of fact to find the defendant guilty beyond a
reasonable doubt. Id.
[7] To convict Gary of Level 5 felony possessing material capable of causing bodily
injury by an inmate, the State was required to establish beyond a reasonable
doubt that Gary knowingly or intentionally while incarcerated in a penal
facility possessed a device, equipment, a chemical substance, or other material
Court of Appeals of Indiana | Opinion 24A-CR-2712 | June 23, 2025 Page 4 of 9 that is used or is intended to be used in a manner that is readily capable of
causing bodily injury. See Ind. Code § 35-44.1-3-7 (2014).
[8] Gary contends that his conviction must be reversed because he did not
voluntarily possess the pepper spray in jail. “A person commits an offense only
if he voluntarily engages in conduct in violation of the statute defining the
offense.” Ind. Code § 35-41-2-1(a) (1983). And “[i]f possession of property
constitutes any part of the prohibited conduct, it is a defense that the person
who possessed the property was not aware of his possession for a time sufficient
for him to have terminated his possession.” Ind. Code § 35-41-2-1(b) (1983).
Thus, though 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..
[9] The State argues that the outcome of this appeal is controlled by this Court’s
decision in Baker v. State. In Baker, a police officer stopped the driver of a truck
for a seatbelt violation. While the officers were gathering information from the
passengers of the truck, Baker provided false identification information. The
officer eventually discovered her true identity and also discovered there was an
active warrant for her arrest. After Baker and the other female passenger, who
also had an active warrant for her arrest, were searched, the officer informed
them that he would be taking them to the county jail and that they would be
Court of Appeals of Indiana | Opinion 24A-CR-2712 | June 23, 2025 Page 5 of 9 charged with trafficking if they possessed prohibited or illegal items when they
entered the jail. Both women indicated that they did not possess illegal or
prohibited items.
[10] Upon arriving at the jail, there were posters and signs indicating that bringing
illegal substances or paraphernalia into the jail would result in a Level 5 felony
charge. After the intake process and prior to the search, an officer asked Baker
if she possessed any illegal substances. Baker indicated that she did not. But
during a search, the officer found a small bag of a substance suspected to be
methamphetamine in Baker’s pocket. Testing of the substance confirmed it was
methamphetamine, and Baker was charged with Level 5 felony possession of
methamphetamine at a penal facility.
[11] Baker presented several arguments on appeal. But the argument relevant to our
discussion is “whether a person who possesses an illegal drug and is
subsequently transported to a penal facility is in the penal facility voluntarily as
to support a conviction of possession of the illegal drug in the penal facility.”
Baker, 208 N.E.3d at 638. Baker claimed that she was faced with the illusory
choice of confessing to possession of methamphetamine or being charged with
trafficking. Id. We acknowledged that “someone is not voluntarily visiting the
jail after being arrested.” Id. at 641. However, in Baker, as in the cases
representing the majority view in other states, the evidence was sufficient
because she was informed that her charges could be enhanced by possession of
an illegal substance and she chose to ignore that warning. Id. The “criminal
action in this case was failing to dispose and/or reveal the presence of the drugs
Court of Appeals of Indiana | Opinion 24A-CR-2712 | June 23, 2025 Page 6 of 9 on [the individual] prior to [] transport into the jail facility.” Id. at 640 (quoting
Herron v. Commonwealth, 688 S.E.2d 901, 906 (Va. Ct. App. 2010)).
[12] Here, we are faced with a very different scenario. Gary was searched when he
was arrested and officers found and seized a methamphetamine pipe. Officers
deemed him noncompliant because he remained limp and four officers carried
him into the booking area, accompanied by another officer. Instead of
conducting a search while they had the numerical advantage and Gary, who
was restrained, was still in the early stages of coming off of his drug-induced
intoxication, the officers proceeded past the search room and placed Gary in a
dry cell.
[13] He gradually reached equilibrium and realized he had items in his pocket which
were not illegal to possess, but which were prohibited in a penal facility. Gary
pressed the intercom button and informed the master control center that he had
a knife and a “starter kit,” which would be “a torch and [] spray.” Tr. Vol. 2, p.
241; Tr. Vol. 3, p. 21. An officer approached his cell and asked Gary to show
him what else he had on him because Gary had mentioned having something
else, possibly a knife. The officer said, “Cause if you have a knife, things are
going to go really south really fast.” Conv. Ex. Vol. 5 (State’s Ex. 1, 1:57-2:00).
Gary responded, “Ok. And what? It’s all my fault? You all brought me in here
with that on me.” Id. at 2:01-2:04. When Gary mentioned that officers had
already searched him, the officer responded, “Cause I can make this a charge
really fast. I have no problem with that.” Id. at 2:09-2:12.
Court of Appeals of Indiana | Opinion 24A-CR-2712 | June 23, 2025 Page 7 of 9 [14] At some point officers saw what they believed to be spray from a pepper spray
can on the floor of the cell. And after Gary refused to place the pepper spray on
the bench in his cell while bargaining for a phone call, the officers deployed
pepper spray in the cell to gain his compliance. Although Gary had mentioned
he had a starter kit, meaning pepper spray and a lighter, the lighter was found
after the officers took him through a body scanner. And there was no evidence
that he was informed prior to entering the jail that he could be charged with an
offense for bringing prohibited items into the jail with him.
[15] The State argues that Gary’s refusal to surrender the pepper spray after being
ordered to place it on the bench is enough to rebut his affirmative defense that
he did not voluntarily bring the items into the jail. We disagree. There is no
evidence in the record to show that officers asked Gary if he had prohibited or
illegal items in his possession prior to placing him in the dry cell. Unlike the
situation in Baker, Gary was not given a choice to disclose the items or hide
them prior to entering the jail. And his use of the starter kit as a bargaining tool
to be placed in a regular cell or for a phone call would not have happened but
for the officers’ decision not to search him while he remained limp, restrained,
and under the effects of intoxication before placing him in the dry cell.
[16] We conclude that Gary did not make the choice to enter the jail while
possessing prohibited items. He volunteered that he had the items. And the
“criminal action” cited in Baker and found in Herron, the failure to dispose of or
disclose the presence of the items before entering the jail, is not present here.
Consequently, we find the evidence insufficient and reverse Gary’s conviction.
Court of Appeals of Indiana | Opinion 24A-CR-2712 | June 23, 2025 Page 8 of 9 Conclusion [17] Having found insufficient evidence that Gary was warned and voluntarily chose
to possess the prohibited items in the jail, we reverse his conviction.
[18] Reversed.
Mathias, J., and DeBoer, J., concur.
ATTORNEY FOR APPELLANT Christopher J. Petersen Elkhart, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana
Daniel H. Frohman Deputy Attorney General Indianapolis, Indiana
Court of Appeals of Indiana | Opinion 24A-CR-2712 | June 23, 2025 Page 9 of 9