Crystal Brotosky-Koteich, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

Case Summary

[1] Crystal Brotosky-Koteich appeals her convictions for possession of cocaine, neglect of a dependent, and operating a vehicle with a controlled substance in the blood, all Level 6 felonies. Brotosky-Koteich claims that the evidence was insufficient to support the neglect of a dependent conviction and that certain convictions must be set aside in light of double jeopardy concerns.

[2] We affirm.

Facts and Procedural History

[3] On January 3, 2023, police received a report from personnel at a primary care facility in Hagerstown that Brotosky-Koteich—who had brought her daughter in for treatment—“was possibly impaired.” Transcript Vol. II at 128. Officer Adam Blanton of the Hagerstown Police Department responded to the call and drove to the parking lot of the business where he observed a vehicle in the lot with no license plate. When Brotosky-Koteich walked out of the building, she got into that vehicle and started to drive away. Officer Blanton noticed Brotosky-Koteich's vehicle swerve several times and cross the fog line.

[4] When Officer Blanton initiated a traffic stop, Brotosky-Koteich parked her car in the middle of the road. Seated next to Brotosky-Koteich was S.W., her seven-year-old daughter. Brotosky-Koteich told Officer Blanton that her poor driving was the result of a defective tire and her carpal tunnel syndrome.

[5] Officer Blanton observed that Brotosky-Koteich had large pupils, her arms were jerking involuntarily, and her speech was rapid. Shortly thereafter, another police officer and his K9 partner arrived at the scene. After performing a sniff of the vehicle's exterior, the dog alerted that there were drugs inside. The officers searched the car and discovered a rock of crack cocaine on the driver's side floorboard, along with a burnt piece of foil and a cut straw with residue. Brotosky-Koteich consented to chemical testing under Indiana's implied consent law, and a blood draw was performed at a hospital. Brotosky-Koteich's blood tested positive for amphetamine, methamphetamine, and THC.

[6] Brotosky-Koteich was arrested and the State charged her with the following offenses:

COUNT I [possession of cocaine]: [O]n or about January 3, 2023, ․ Crystal Brotosky did knowingly or intentionally possess Cocaine, pure or adulterated, contrary to Indiana law.

COUNT II [neglect of a dependent]: [O]n or about January 3, 2023, ․ Crystal Brotosky having the care of S.W., a dependent, did knowingly place said dependent in a situation that endangered the dependent's life or health, to-wit: maintained an environment that risked exposure of S.W. to a controlled substance, Cocaine, contrary to Indiana law.

COUNT III [operating a vehicle with a controlled substance in the blood]: [O]n or about January 3, 2023, ․ Crystal Brotosky did operate a vehicle with methamphetamine, a controlled substance listed in Schedule I or II of I.C. 35-48-2 or its metabolite, in her blood, contrary to Indiana law. On or about March 21, 2022, Crystal Brotosky was convicted of Operating a Vehicle While Intoxicated, I.C. 9-30-5-2(a), a Level 6 Felony, in Cause No. 89D03-2111-F6-000640.

COUNT IV [possession of paraphernalia]: [O]n or about January 3, 2023, ․ Crystal Brotosky did knowingly or intentionally possess an instrument, device, or object, to-wit: cut straw; that the defendant intended to use for introducing into the defendant's body a controlled substance, to-wit: Cocaine, contrary to Indiana law.

Appellant's Appendix Vol. II at 146 (emphasis added).

[7] Following a jury trial on February 25, 2025, Brotosky-Koteich was found not guilty of possession of paraphernalia and guilty on all other charges.¹ The trial court entered judgments of conviction accordingly and subsequently sentenced Brotosky-Koteich to concurrent terms of two and one half years on each count with one year of each sentence suspended to probation.

[8] Brotosky-Koteich now appeals. Additional information will be provided below as needed.

Discussion and Decision

I. Sufficiency of the Evidence

[9] Brotosky-Koteich claims that the evidence was insufficient to support her conviction for neglect of a dependent. Specifically, Brotosky-Koteich claims that the conviction must be set aside because the State “presented no direct evidence that [she] acted with the knowledge or intent required to support a conviction for [that offense].” Appellant's Brief at 9.

[10] Sufficiency-of-the-evidence claims trigger a deferential standard of review in which we neither reweigh the evidence nor judge witness credibility, instead reserving those matters to the province of the jury. Hancz-Barron v. State, 235 N.E.3d 1237, 1244 (Ind. 2024). A conviction is supported by sufficient evidence if there is substantial evidence of probative value supporting each element of the offense such that a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. Id. In conducting that review, we consider only the evidence that supports the jury's determination, not evidence that might undermine it. Id.

[11] To obtain a conviction for neglect of a dependent as charged here, the State was required to prove that Brotosky-Koteich “having the care of [S.W., her dependent] ․ knowingly or intentionally place[d] [S.W.] in a situation that endanger[ed] [S.W.’s] life or health.” Ind. Code § 35-46-1-4(a)(1). To prove a person acted “knowingly,” the State must show that the defendant was subjectively aware of a high probability that the dependent would be endangered. See Ind. Code § 35-41-2-2(b). Put another way, the mens rea under the Neglect Statute requires the defendant to have a subjective awareness of a high probability that she placed her dependent in a dangerous situation. See Scruggs v. State, 883 N.E.2d 189, 191 (Ind. Ct. App. 2008), trans. denied.

[12] Our Supreme Court has determined that “the knowing exposure of a dependent to an environment of illegal drug use poses an actual and appreciable danger to that dependent and thereby constitutes neglect regarding the endangerment requirement of the offense.” White v. State, 547 N.E.2d 831, 836 (Ind. 1989). And this court has found sufficient evidence of neglect of a dependent where the defendant took children into an area where drugs were kept or sold. See McGowan v. State, 89 N.E.3d 424, 429 (Ind. Ct. App. 2017).

[13] Here, the State alleged that Brotosky-Koteich “maintained an environment that risked exposure of S.W. to a controlled substance, Cocaine.” Appellant's Appendix Vol. II at 146. At trial, the evidence established that seven-year-old S.W. was a passenger in the vehicle that her mother—Brotosky-Koteich—was driving that contained cocaine and other items associated with drug use. While Brotosky-Koteich asserts that the jury may have instead convicted her based on dangerously operating a vehicle with a different controlled substance in her blood while S.W. was in the vehicle, the trial court informed the jury in its preliminary and final instructions that the neglect charge was specifically based on S.W.’s risk of exposure to cocaine. A jury is presumed to follow the court's instructions. Weisheit v. State, 26 N.E.3d 3, 20 (Ind. 2015). Thus, Brotosky-Koteich's sufficiency of the evidence challenge on this basis fails.

[14] Brotosky-Koteich further contends that her conviction must be set aside because the State failed to sufficiently prove that she knew that cocaine was in her car and, therefore, she did not know that she placed S.W. in a dangerous situation. We reject that claim because the jury specifically found that Brotosky-Koteich knowingly or intentionally possessed cocaine. And the evidence established that the cocaine and other drug-related items were found on the driver's side floorboard where Brotosky-Koteich was sitting. These circumstances permitted the jury to find that Brotosky-Koteich knowingly neglected S.W. when she transported her in a vehicle that contained cocaine and residue.

[15] Finally, to the extent that Brotosky-Koteich suggests that her intoxication may have made her less aware of the danger of the cocaine in her car or the risk of exposure to her daughter, intoxication does not lessen criminal culpability. See I.C. § 35-41-2-5 (intoxication is not a defense in a prosecution for an offense and may not be taken into consideration in determining the existence of a mental state that is an element of the offense).

[16] In sum, Brotosky-Koteich's arguments amount to impermissible requests to reweigh the evidence. The evidence was sufficient to support Brotosky-Koteich's conviction for neglect of a dependent.

II. Double Jeopardy

[17] Brotosky-Koteich claims that her convictions for possession of cocaine and neglect of a dependent and/or operating a vehicle with a Schedule I or II substance in the blood violate double jeopardy prohibitions. Brotosky-Koteich argues that the neglect of a dependent and operating a vehicle with a controlled substance in her blood offenses were based on the single act of driving. Thus, Brotosky-Koteich asserts that the convictions for these alleged “included offenses” must be vacated. Appellant's Brief at 14-15.

[18] We review double jeopardy claims de novo. Wadle v. State, 151 N.E.3d 227, 237 (Ind. 2020). Indiana's protection against substantive double jeopardy prohibits “multiple convictions for the same offense in a single proceeding.” A.W. v. State, 229 N.E.3d 1060, 1066 (Ind. 2024). To determine if a substantive double jeopardy violation has occurred, we apply a “three-part test based on statutory sources.” Id.

[19] First, we look to the statutory language of the offenses at issue; if that language “clearly permits multiple punishments,” then “there is no violation of substantive double jeopardy” and we end our analysis. Id. (quotation marks omitted). Here, none of the statutes clearly permits multiple punishments, either expressly or by unmistakable implication. See Ind Code § 9-30-5-1 (operating with a controlled substance), I.C. § 35-46-1-4 (neglect of a dependent), and I.C. § 35-48-4-6 (possession of cocaine).

[20] Thus, we proceed to the second step. Under this analysis, we assess whether the charges are inherently included or factually included as charged. A.W., 229 N.E.3d at 1068. At this step, we first “apply our included-offense statutes” to determine if one offense is inherently included in the other. Id. at 1066. An offense is an included offense if it “is established by ․ the same material elements or less than all the material elements required to establish ․ the offense charged,” if the offense “consists of an attempt to commit the offense charged,” or if the offense differs from the offense charged in that there is a less serious risk of harm or a lesser culpability is required to establish its commission. Ind. Code § 35-31.5-2-168.

[21] An offense is also an included offense when the charging information states that the “means used” to commit the alleged greater offense “include all of the elements of the alleged lesser included offense.” A.W., 229 N.E.3d at 1067. If ambiguities exist in a charging instrument about “whether one offense is factually included in another, ․ courts must construe those ambiguities in the defendant's favor[ ] and thus find a presumptive double jeopardy violation at Step 2.” Id. If no offense is an included offense, there is no substantive double jeopardy violation, and the inquiry ends. Wadle, 151 N.E.3d at 248.

[22] Here, Brotosky-Koteich's offenses—possession of cocaine, neglect of dependent, and operating with a controlled substance in her blood—all involved different means used and do not fall under any of the statutory definitions of included offenses. See I.C. § 35-31.5-2-168. In other words, the charges alleged in the informations and the resulting convictions are clearly based on Brotosky-Koteich's separate acts, i.e., possession of cocaine, exposing her daughter to that drug, and driving a vehicle with methamphetamine in her blood.

[23] Brotosky-Koteich notes that this court has previously determined that neglect of a dependent and operating a vehicle while intoxicated are included offenses where the convictions were based on the “same conduct or single act of operating a motor vehicle while intoxicated.” Kellogg v. State, 636 N.E.2d 1262, 1267-68 (Ind. Ct. App. 1994). The holding in Kellogg is inapplicable here, however, because Brotosky-Koteich's neglect charge was specifically based on the act of exposing S.W. to the cocaine. Therefore, Brotosky-Koteich cannot show that her offenses were either inherently or factually included as charged because possession of cocaine, neglect of a dependent, and operating with a controlled substance in her blood each punish separate conduct. Thus, there was no double jeopardy violation.

[24] Judgment affirmed.

FOOTNOTES

1.   Brotosky-Koteich pled guilty to an enhancement for having a prior conviction for operating while intoxicated.

Altice, Judge.

Brown, J., and DeBoer, J, concur.