August 1, 2013

Kokomo business owner acquitted on drug charges

Judge declares a mistrial after Gary Elvers jury deadlocks on other counts.

By Scott Smith For the Pharos-Tribune

---- — KOKOMO — A Howard County jury deliberated for about three hours before finding Kokomo business owner Gary Elvers not guilty of two counts of dealing synthetic marijuana and one count of corrupt business influence. A conviction on the latter charge would have enabled prosecutors to seize much of Elvers’ property in a forfeiture action.

The jury deadlocked on two charges Tuesday, setting up a possible retrial for Kokomo head shop proprietor Elvers.

Elvers was arrested after a March 19, 2012, raid on his now-closed West Mulberry Street shop and charged with dealing synthetic marijuana, maintaining a common nuisance, and corrupt business influence.

Howard County Prosecutor Mark McCann said Wednesday he will retry Elvers on two counts of maintaining a common nuisance, after the jurors in Howard Superior Court 1 could not reach a decision.

Elvers also still faces seven other related charges in a separate case prosecutors filed in July 2012, shortly after Indiana State Police drug lab reports came back on multiple items seized in the March raid.

Prosecutors said the items tested positive for substances banned by the state in a law that went into effect four days prior to the March raid. The new law outlawed synthetic drugs commonly known as “bath salts” and “spice,” under the rationale that they are harmful substances which mirror the effects of drugs already controlled or banned by the state.

The case has a somewhat confusing history. Kokomo Police purchased items in September and October of 2011 in an undercover sting operation, in an attempt to show Elvers was selling substances which were illegal according to the law as it stood in 2011.

But the Indiana Legislature strengthened the law by encompassing a wider array of substances in a measure that took effect in March 2012.

According to Kokomo Police Department affidavits, an undercover officer went back to the store after the new law passed and tried, but failed, to purchase illegal items.

Kokomo Detective James Nielson said in an affidavit that he attempted to purchase spice and bath salts during a March 19, 2012 undercover visit, but “learned” that the products had been taken off the shelves.

The same day, police executed a search warrant and found suspected banned products in a closet.

Tuesday, the jurors rendered verdicts on charges filed based on the 2011 undercover drug buys. Elvers still faces the charges stemming from the March 2012 search warrant raid.

Judge William Menges declared a mistrial on the two deadlocked charges, and set an Oct. 18 date to try both of those charges again, along with the other seven counts Elvers faces.

Based on the test results, prosecutors added six felony charges of dealing in a synthetic drug and one felony count of maintaining a common nuisance.

Howard County Prosecutor Mark McCann said Wednesday the state will continue to pursue charges against Elvers “because it’s illegal.”

“We fully intend to go forward with the prosecution of the two remaining counts, and to prosecute all of the charges in the separate case,” McCann said.

Elvers left messages with the Kokomo Tribune Wednesday calling the prosecution a “witch hunt” and asking when prosecutors would stop spending funds on “harassment.”

Prosecutors and police tried three times about a decade ago to bust Elvers for selling drug paraphernalia. The cases all ended in dismissals.

Scott Smith can be reached at 765-454-8569 or at