Tervarus L. Gary v. State of Indiana

Summary

The Indiana Supreme Court affirmed Tervarus L. Gary’s conviction for possessing material capable of causing bodily injury while incarcerated. The court held that an arrestee who involuntarily brings prohibited material into a penal facility may be criminally liable for knowingly retaining it after receiving a reasonable opportunity to relinquish it. The court concluded that sufficient evidence showed Gary retained pepper spray as leverage and failed to surrender it promptly after discovering it.

Holdings

1. Indiana Code section 35-44.1-3-7 is not limited to prohibited material voluntarily brought into a penal facility; it prohibits an incarcerated person from knowingly or intentionally possessing prohibited material at any time, including material unknowingly or involuntarily brought into the facility.
2. A defendant does not violate Indiana Code section 35-44.1-3-7 if, after discovering prohibited material, the defendant relinquishes it at the earliest reasonable opportunity. Once the defendant is aware of the material and declines a reasonable opportunity to surrender it, continued possession becomes voluntary.
3. The evidence was sufficient to prove that Gary voluntarily retained the pepper spray after receiving reasonable opportunities to relinquish it.

Questions Presented

1. Whether Indiana Code section 35-44.1-3-7 requires the State to prove that an incarcerated person voluntarily brought prohibited material into a penal facility.
2. Whether an arrestee who involuntarily brings prohibited material into a penal facility may be criminally liable for knowingly retaining it after discovering it and receiving a reasonable opportunity to relinquish it.
3. Whether sufficient evidence supported Gary's conviction when he failed to surrender the pepper spray at the earliest reasonable opportunity.

Disposition

affirmed