MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Stacy R. Uliana

Bargersville, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Justin F. Roebel

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Muhamed Dugonjic,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

November 30, 2016

Court of Appeals Case No.

29A02-1512-CR-2281

Appeal from the Hamilton 

Superior Court

The Honorable Steven R. Nation, 

Judge

Trial Court Cause No.

29D01-1405-FB-3452

Crone, Judge.

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Case Summary

[1] Muhamed Dugonjic appeals his convictions for class B felony criminal deviate 

conduct and class D felony sexual battery. He maintains that the trial court 

improperly instructed the jury concerning the definitions of certain elements of 

his offenses; abused its discretion in admitting evidence of certain conduct by 

defense counsel and in refusing to admit certain evidence concerning the 

victim’s past sexual conduct; and abused its discretion in its treatment of

aggravating factors during sentencing. We conclude that the trial court acted 

within its discretion in instructing the jury and in its treatment of aggravators 

during sentencing. We also conclude that the trial court did not commit 

reversible error in admitting evidence concerning defense counsel’s conduct or 

in excluding certain evidence concerning A.D.’s sexual history. Therefore, we 

affirm Dugonjic’s convictions and sentence. 

Facts and Procedural History

[2] In 2010, A.D. moved from Bosnia to Carmel, Indiana, to attend school and 

work as an au pair. The au pair program provided her with a host family. 

When her program ended, she worked as a live-in nanny for her host family. 

[3] In December 2010, A.D. connected on Facebook with Dugonjic, a Bosnian 

immigrant who lived in Arizona and worked as a truck driver. The two began 

to communicate by phone and through text messages, and in the late summer 

of 2011, A.D. made her first of three trips to Arizona to visit Dugonjic. 

Dugonjic visited A.D. in Indiana many times. During the visits, the couple 

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sometimes stayed at a hotel, where they engaged in various sexual acts short of 

sexual intercourse. A.D. testified that she intended to abstain from premarital 

sexual intercourse due to her religious beliefs, but she allowed Dugonjic to 

touch her breasts and vagina because he had assured her that they were going to 

stay together and she was “100 percent sure” that they would marry. Tr. at 

701, 708, 789, 800-01. 

[4] In October 2012, a woman called A.D. and informed her that she was engaged 

to Dugonjic. This prompted A.D. to investigate Dugonjic’s background, 

whereupon she discovered that he was married to a woman in Bosnia. When 

she confronted him, Dugonjic confessed that he was married, had a child, and 

was several years older than he had originally represented. The couple ended 

the romantic relationship but continued to visit each other intermittently.

[5] In May 2013, A.D. informed Dugonjic that she was pursuing another 

relationship. A month later, Dugonjic texted A.D., told her that he was in 

Indiana, and asked to meet her one last time for five minutes at a previous 

rendezvous spot behind a discount store. A.D. declined a private meeting but 

agreed to meet him inside the store. The two walked and talked inside the 

store, and Dugonjic kissed her. A.D. agreed to drive him to his vehicle. When 

they got to his vehicle, which was parked behind the store, Dugonjic kissed 

A.D. and implored her to leave with him. A.D. refused and reminded him of 

his history of lying to her. An argument ensued. A.D. received a text message 

from her new boyfriend, and Dugonjic grabbed her purse and demanded to see 

her phone. She quickly powered it off, and Dugonjic grabbed it, causing it to 

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break. He demanded her PIN code, and she gave him a false code. When he 

discovered that he was locked out of the phone, he removed its SIM card and 

exited the vehicle. 

[6] A.D. followed Dugonjic, seeking the return of her SIM card and explaining that 

Dugonjic would not be able to access its contents because her phone was under 

her host family’s account. He approached her, said that he loved her, accused 

her of “cheat[ing]” on him, and kissed her in a “rough” and “aggressive 

manner.” Id. at 727. He then put his hand under her shirt and began kissing 

her breasts. She told him that she just wanted her SIM card and reminded him 

of his promise that their meeting would last only five minutes. He then put his 

hand inside her pants and “started pushing his fingers” “inside [her],” “[i]n 

[her] vagina,” “deep inside and it was hurting.” Id. at 728-29. A.D. implored 

him to stop, but he refused. He turned her around with “his hand deep inside” 

her, and she fell to the pavement and thought she was going to “pass out.” Id. 

at 729-30. She begged him to let go of her, and he refused. A truck appeared 

and shone its headlights on them, at which point A.D. told Dugonjic that she 

would leave with him if he would just let go of her. He grabbed her hand and 

attempted to pull her inside his truck. She broke away from his grip and ran 

across the street to an apartment complex. She entered an open garage and 

went inside the adjoining apartment to seek help. The residents phoned 911 on 

her behalf. 

[7] Emergency personnel arrived, and A.D. described the attack to a female medic. 

When she went to the restroom, she discovered that her genitals were bleeding. 

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She was taken to a nearby hospital and examined by a sexual assault nurse, 

who observed injuries to A.D.’s clitoris and labia minor crease as well as 

bruising consistent with Dugonjic clutching her arm and injuries consistent with 

having fallen to the pavement. Police found A.D.’s vehicle behind the store, 

still running and unlocked. They also found her broken phone and SIM card. 

[8] The State charged Dugonjic with class B felony criminal deviate conduct, class 

C felony battery resulting in serious bodily injury, and class D felony sexual 

battery. Seven months before trial, the State filed a motion in limine, seeking to 

limit the admission of evidence of A.D.’s prior sexual activity pursuant to 

Indiana’s Rape Shield Rule. The trial court conducted hearings and granted the 

State’s motion, limiting the admission to evidence relevant to Dugonjic’s claim

that A.D. had consented to the charged conduct. A jury found Dugonjic guilty 

of class B felony criminal deviate conduct and class D felony sexual battery. 

The trial court sentenced him to twelve years for criminal deviate conduct and a 

concurrent one and one-half years for sexual battery. 

[9] Dugonjic now appeals. Additional facts will be provided as necessary. 

Discussion and Decision

Section 1 – The trial court did not abuse its discretion in

instructing the jury on the definitions of intent to arouse and 

penetration.

[10] Dugonjic maintains that the trial court committed reversible error by giving 

certain jury instructions. “The purpose of a jury instruction is to inform the 

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jury of the law applicable to the facts without misleading the jury and to enable 

it to comprehend the case clearly and arrive at a just, fair, and correct verdict.” 

Isom v. State, 31 N.E.3d 469, 484 (Ind. 2015) (internal quotation marks 

omitted), cert. denied (2016). We review a trial court’s instructions to the jury for 

an abuse of discretion. Id. An abuse of discretion occurs when the instruction 

is erroneous and the instructions taken as a whole misstate the law or otherwise 

mislead the jury. Id. at 484-85. “When evaluating the jury instructions on 

appeal this Court looks to whether the tendered instructions correctly state the 

law, whether there is evidence in the record to support giving the instruction, 

and whether the substance of the proffered instruction is covered by other 

instructions.” Id. “Jury instructions are to be considered as a whole and in 

reference to each other; error in a particular instruction will not result in 

reversal unless the entire jury charge misleads the jury as to the law of the 

case.” Flake v. State, 767 N.E.2d 1004, 1007 (Ind. Ct. App. 2002). “Instructions 

that unnecessarily emphasize one particular evidentiary fact, witness, or phase 

of the case have long been disapproved.” Ludy v. State, 784 N.E.2d 459, 461 

(Ind. 2003). 

[11] Dugonjic first challenges Instruction 14, which reads, “The element of ‘with the 

intent to arouse or satisfy the sexual desires’ may be proven by circumstantial 

evidence, and the jury may consider the natural and usual [con]sequence to 

which the defendant’s conduct points.” Appellant’s App. at 331 (emphases 

added). Instruction 14 must be read in conjunction with Instruction 7, which 

reads:

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The crime of Sexual Battery which is the basis for Count 3, is 

defined by statute in pertinent part as follows:

A person who, with intent to arouse or satisfy the person’s own 

sexual desires or the sexual desires of another person ... touches 

another person when that person is ... compelled to submit to the 

touching by force ... commits sexual battery, a Class D felony. 

Before you may convict the Defendant, the State must have 

proved each of the following essential elements beyond a 

reasonable doubt:

1. The Defendant

2. with the intent to arouse or satisfy his own sexual desires or 

the sexual desires of [A.D.]

3. knowingly

4. touched [A.D.] when [A.D.] was compelled to submit to the 

touching by force.

If the State failed to prove each of these essential elements 

beyond a reasonable doubt, you must find the Defendant not 

guilty of Sexual Battery, a Class D felony.

Id. at 324. See also Ind. Code § 35-42-4-8 (2013) (“A person who, with intent to 

arouse or satisfy the person’s own sexual desires or the sexual desires of another 

person, touches another person when that person is ... compelled to submit to 

the touching by force or the imminent threat of force ... commits sexual battery, 

a Class D felony.”).

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[12] Dugonjic asserts that Instruction 14 improperly shifts the burden of proof to 

him by creating a mandatory presumption. In Winegeart v. State, our supreme 

court affirmed the propriety of a similar jury instruction, which read in 

pertinent part, “A determination of the defendant’s intent may be arrived at by 

the jury from a consideration of the defendant’s conduct and the natural and 

usual consequences to which such conduct logically and reasonably points.” 665 

N.E.2d 893, 903 n.3 (Ind. 1996) (emphases added). There, as here, the trial 

court used the permissive term “may.” Id. The Winegeart court concluded that 

the instruction’s use of “may” described a permissive inference rather than a 

mandatory presumption. Id. at 904. Likewise, here, Instruction 14 “did not 

mandate that the jury employ any particular presumptions but merely permitted 

it to draw appropriate inferences from the evidence.” Id. 

[13] Dugonjic relies on Ludy, 784 N.E.2d at 461, as support for his contention that 

Instruction 14 unduly emphasized particular evidence. In Ludy, our supreme 

court found an instruction improper because it singled out the “uncorroborated 

testimony of the alleged victim” as a proper basis for a conviction and thus 

invited the jury to violate its obligation to consider all the evidence. Id. at 460.1

 

Similarly, in Keller v. State, our supreme court reversed a burglary conviction 

based on a jury instruction that included not only a definition of dwelling but 

1

 The Ludy court also explained that the instruction was worded more like an appellate standard of review 

than a jury instruction and emphasized that the use of certain language in appellate opinions does not make 

that same language proper for use in jury instructions. 784 N.E.2d at 462. This reasoning does not apply 

here, as the “natural and usual consequence” language has been held to be proper for jury instructions. 

Winegeart, 665 N.E.2d at 903 n.3. Moreover, the language of Instruction 14 was not technical, as it was in 

Ludy, which included the term “uncorroborated.” 784 N.E.2d at 461.

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also a specific example of a dwelling that coincided with specific evidence. 47 

N.E.3d 1205, 1209-10 (Ind. 2016). The Keller court found this to be misleading, 

explaining that it unduly emphasized a specific piece of evidence and thus 

invaded the province of the jury. Id.

[14] In contrast, here, Instruction 14 does not single out any particular conduct by 

Dugonjic (which would include kissing A.D.’s mouth and breasts and forcing 

his finger in her vagina). Rather, it merely states that when evaluating whether 

Dugonjic acted with “intent to arouse or satisfy” his or A.D.’s sexual desires the 

jury could permissibly infer that intent from the natural and usual consequences 

of his conduct. Instruction 14 neither unduly emphasizes specific evidence nor 

hinders the jury in carrying out its duty to consider all the evidence. As such, 

the trial court acted within its discretion in giving it.

[15] Dugonjic also challenges Instruction 13, which reads, “Proof of the slightest 

penetration is sufficient to sustain a conviction for criminal deviate conduct. 

Penetration does not require the vagina to be penetrated, only that the female 

sex organ, including the external genitalia, be penetrated.” Appellant’s App. at 

330. This instruction must be read in context with Instruction 5, which reads,

The crime of Criminal Deviate Conduct which is the basis for 

Count 1 is defined by statute in pertinent part as follows:

A person who knowingly ... causes another person to perform or 

submit to deviate sexual conduct when ... the other person is 

compelled by force ... commits criminal deviate conduct, a Class 

B felony.

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Before you may convict the Defendant, the State must have 

proved each of the following essential elements beyond a 

reasonable doubt:

1. The Defendant

2. knowingly

3. caused [A.D.] to submit to deviate sexual conduct when 

4. [A.D.] was compelled by force.

If the State failed to prove each of these essential elements 

beyond a reasonable doubt, you must find the Defendant not 

guilty of Criminal Deviate Conduct, a Class B felony.

Id. at 322. See also Ind. Code § 35-41-1-9 (repealed July 1, 2014) (“‘Deviate 

sexual conduct’ means an act involving ... the penetration of the sex organ or 

anus of a person by an object.”).

[16] Dugonjic submits that Instruction 13 amounts to an incorrect statement of the 

law because it states that the penetration necessary to convict him of criminal 

deviate conduct includes the “slightest penetration” of the “vagina” or “female 

sex organ, including the external genitalia.” Appellant’s App. at 330. He relies 

on Thompson v. State, arguing that the “slightest penetration” language is 

appropriate only for instructions on the offense of rape. 674 N.E.2d 1307, 1311 

(Ind. 1996). There, our supreme court was faced not with a challenge to a jury 

instruction but instead with a challenge to the sufficiency of evidence to support 

the element of penetration in both the defendant’s rape conviction and criminal 

deviate conduct conviction. The Thompson court held the evidence insufficient 

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to support the penetration element of criminal deviate conduct. However, the 

Thompson court narrowly tailored its holding based on the unique circumstances 

indicating that the defendant used his fingers only to assist in the penetration of 

his penis for purposes of committing the rape. We find Thompson

distinguishable. Penetration is an element of only one of Dugonjic’s charged 

offenses, and that offense, criminal deviate conduct, includes the element of 

penetration. “[W]hen the question is whether penetration occurred, it is well 

settled that proof of the slightest degree of penetration is sufficient.” Harding v. 

State, 457 N.E.2d 1098, 1101 (Ind. 1984). In Harding, our supreme court held 

that, even though weak and equivocal, the victim’s testimony concerning anal 

penetration was sufficient to support the defendant’s conviction for criminal 

deviate conduct. Id. 

[17] Dugonjic claims that Instruction 13 also confused the jury concerning the 

distinction between touching and penetration. He cites as support Adcock v. 

State, in which another panel of this Court found ineffective assistance of 

counsel based on counsel’s failure to raise a sufficiency challenge to his 

conviction for child molesting involving penetration. 22 N.E.3d 720, 728-30 

(Ind. Ct. App. 2014). There, the victim never testified that any part of her 

genitalia was penetrated, there was no medical evidence of penetration, and the 

State argued that mere contact between the male and female organs was 

sufficient to establish vaginal penetration. Id. In contrast, here, the challenged 

instruction went further than mere contact, requiring a finding of the “slightest 

penetration,” and A.D. testified that Dugonjic digitally penetrated her vagina in 

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a forceful manner, causing her pain and bleeding. In short, Instruction 13 is 

supported by the evidence and is neither legally incorrect nor confusing. We 

find no abuse of discretion here. 

Section 2 – The trial court did not commit reversible error in 

admitting evidence of possible witness intimidation.

[18] Dugonjic also challenges the admission of evidence that defense counsel

engaged in conduct that could be considered witness intimidation. We review

rulings on the admission or exclusion of evidence for an abuse of discretion 

resulting in prejudicial error. Williams v. State, 43 N.E.3d 578, 581 (Ind. 2015). 

An abuse of discretion occurs when the trial court’s decision is clearly against 

the logic and effect of the facts and circumstances before it or where the trial 

court misinterprets the law. Id. To determine whether an error prejudiced the 

defendant, we assess the probable impact of the challenged evidence upon the 

jury, in light of all the other evidence that was properly presented. Id. If 

substantial independent evidence of guilt supports the conviction, the error is 

harmless. Id.

[19] The following exchange took place during direct examination of A.D.:

Q. Did [Defense Counsel] come to your door one day?

A. Yes, he did.

Q. Do you remember when that was?

A. It was last year sometime.

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Q. And had he called you to see if it was okay if he came over?

A. No, he didn’t.

[DEFENSE COUNSEL]: Objection. Relevance, Your Honor.

[STATE]: Judge, I believe it’s very relevant. He showed up on 

her doorstep unannounced with an investigator.

[DEFENSE COUNSEL]: Why is that relevant?

[STATE]: To try to intimidate her.

THE COURT: Objection overruled.

Tr. at 760.

[20] It is well established that a defendant’s attempt to influence witnesses is 

probative evidence of consciousness of guilt. Mayes v. State, 467 N.E.2d 1189, 

1194 (Ind. 1984). The defendant’s threats against the victim or other

prosecution witnesses are “relevant and admissible into evidence.” Matthews v. 

State, 866 N.E.2d 821, 825 (Ind. Ct. App. 2007), trans. denied. Nevertheless, the 

State must show that the threats were made by the defendant or with his 

knowledge or authorization. Cox v. State, 422 N.E.2d 357, 361-62 (Ind. Ct. 

App. 1981). In Cox, another panel of this Court reversed the defendant’s 

conviction and remanded for a new trial where the trial court admitted evidence 

that unknown persons from a youth center had threatened a witness’s life if he 

testified against Cox. Id. The Cox court emphasized that the State had failed to 

establish a nexus between Cox and the unidentified source of the threats. Id. 

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[21] Here, the alleged threats came not from Dugonjic but rather from members of 

his defense team. The State introduced evidence that defense counsel and a 

defense investigator made an unannounced visit to A.D.’s house before trial, 

during which counsel questioned her about whether she understood the 

seriousness of the charges and whether she would object to Dugonjic being 

placed on probation. Dugonjic objected on relevancy grounds. See Ind. 

Evidence Rule 401 (“Evidence is relevant if ... it has any tendency to make a 

fact more or less probable than it would be without the evidence; and ... the fact 

is of consequence in determining the action.”). Defense counsel asserted that 

he visited A.D. only to investigate the case and test her “resolve.” Tr. at 776. 

The State claimed that the evidence was relevant on the issue of whether 

intimidation had occurred, and the trial court overruled Dugonjic’s objection. 

Dugonjic correctly asserts that defense counsel is obligated to interview 

witnesses, and the record shows that the defense deposed A.D. at length. The 

problem is not that defense counsel sought to interview A.D. but that the 

manner in which he did so suggested possible intimidation, i.e., an impromptu

appearance at A.D.’s front door admittedly to test her resolve.

2

 

[22] Dugonjic asserts that the State failed to connect his counsel’s alleged threats to 

him. Unlike in Cox, where the threats were made by “unknown” persons, the 

2

 In his brief, Dugonjic argues for the first time that the State’s introduction of this evidence was an 

evidentiary harpoon. See Benson v. State, 762 N.E.2d 748, 749-50 (Ind. 2002) (strongly disapproving of 

prosecutor’s questions about threats toward a witness made without any evidentiary support or foundation, 

yet finding error harmless). Because he did not object at trial on these grounds, his claim on this point is 

waived. Myers v. State, 887 N.E.2d 170, 184 (Ind. Ct. App. 2008), trans. denied. 

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person allegedly intimidating A.D. was a person with a close connection to the 

defendant. 422 N.E.2d at 361-62. Even so, we acknowledge that the record is 

silent as to whether Dugonjic instructed or otherwise authorized defense 

counsel to approach A.D. at her home to test her “resolve.” 

[23] However, we do not believe that the admission of this evidence amounts to 

prejudicial error. First, the interchange on this matter is miniscule when placed 

in context with the nearly 1400 pages of transcript, and any attention drawn to 

the alleged intimidation is more likely attributable to defense counsel addressing

it during closing argument. Tr. at 1209. More importantly, Dugonjic’s

conviction is supported by independent evidence, including: A.D. fleeing to a 

nearby apartment after the attack; the apartment residents’ description of A.D. 

as pale and distraught; A.D. bleeding from her genitalia; medical evidence of 

injuries to A.D.’s genitalia; medical evidence of additional injuries 

corroborating A.D.’s account of struggling to get away from Dugonjic’s grip 

and falling to the pavement; police finding A.D.’s vehicle still running and

unlocked, along with her broken phone and SIM card; and Dugonjic having left 

the scene. Based on the foregoing, we conclude that substantial independent 

evidence supports Dugonjic’s convictions. As such, any error in the admission 

of the evidence was harmless. 

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Section 3 – The trial court did not commit reversible error in 

limiting the admission of evidence concerning A.D.’s sexual 

history. 

[24] Dugonjic also submits that the trial court abused its discretion in limiting 

evidence concerning A.D.’s sexual history. Indiana Evidence Rule 412, also 

known as the Rape Shield Rule, reads in pertinent part, 

(a) Prohibited Uses. The following evidence is not admissible in 

a civil or criminal proceeding involving alleged sexual 

misconduct:

(1) evidence offered to prove that a victim or witness engaged in 

other sexual behavior; or

(2) evidence offered to prove a victim’s or witness’s sexual 

predisposition.

(b) Exceptions. 

(1) Criminal Cases. The court may admit the following evidence 

in a criminal case:

....

(B) evidence of specific instances of a victim’s or witness’s sexual 

behavior with respect to the person accused of the sexual 

misconduct, if offered by the defendant to prove consent or if offered 

by the prosecutor; and

(C) evidence whose exclusion would violate the defendant’s 

constitutional rights.

(Emphasis added.)

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[25] “Rule 412 is intended to prevent the victim from being put on trial, to protect 

the victim against surprise, harassment, and unnecessary invasion of privacy, 

and importantly, to remove obstacles to reporting sex crimes.” Williams v. State, 

681 N.E.2d 195, 200 (Ind. 1997). Even if the evidence is relevant, Indiana 

Evidence Rule 403 allows the trial court to “exclude relevant evidence if its 

probative value is substantially outweighed by a danger of ... unfair prejudice.” 

[26] Here, the trial court held hearings on the State’s motion in limine. At those 

hearings, Dugonjic was afforded the opportunity to present evidence to the trial 

court concerning the full extent of his past sexual relationship with A.D. The 

trial court did not exclude all the evidence but, because consent was at issue, 

merely limited the evidence to that which it found relevant to the circumstances 

of the case, that being conduct similar to the type of conduct that formed the 

basis for the charges, i.e., digital penetration of A.D.’s genitalia. 

[27] Dugonjic claims that by excluding evidence of oral sex between himself and 

A.D. and provocative photos that A.D. allegedly sent him, the trial court 

denied him his Sixth Amendment right of confrontation, particularly, the 

opportunity to counter the State’s characterization of A.D. as a sexually naïve

person who wished to abstain from sexual intercourse before marriage due to 

her religious beliefs. As this Court has previously explained with respect to the 

Sixth Amendment,

The right to cross examination is not absolute. The 

Confrontation Clause guarantees an opportunity for effective 

cross-examination, not cross-examination that is effective in 

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whatever way, and to whatever extent, the defense might wish. 

Furthermore, the right to confront witnesses may, in appropriate 

cases, bow to accommodate other legitimate interests in the 

criminal trial process. .... The Indiana Supreme Court has held 

that Indiana’s Rape Shield Statute does not violate a defendant’s 

Sixth Amendment right to confront witnesses absent a showing 

of actual impingement on cross examination.

Oatts v. State, 899 N.E.2d 714, 722 (Ind. Ct. App. 2009) (citations and internal 

quotation marks omitted).

[28] As support for his Sixth Amendment argument, Dugonjic relies on Baker v. 

State, where our supreme court reversed the accused’s rape conviction and 

remanded for a new trial after finding prejudicial error in the trial court’s 

exclusion of evidence concerning a recent and regular sexual relationship 

between the accused and the victim. 750 N.E.2d 781, 783-87 (Ind. 2001). 

There, evidence of the relationship itself was completely excluded. Id. In 

contrast, here, the jury heard testimony concerning Dugonjic’s prior sexual 

relationship with A.D. The trial court limited the scope of the evidence to that 

which concerned the charged offenses. Thus, Baker is distinguishable.

[29] With respect to the excluded photographic evidence and evidence of past 

instances in which A.D. allegedly performed oral sex on Dugonjic, we find this 

to be the type of evidence that falls within the protection of the Rape Shield 

Rule, that is, lacking in relevance and potentially inflammatory and humiliating 

to the extent of putting the victim on trial. See also Ind. Evidence Rule 403

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(probative value of this evidence would have been substantially outweighed by 

the danger of unfair prejudice). 

[30] As for the evidence concerning alleged instances of Dugonjic performing oral 

sex on A.D., we disagree with the trial court’s basis for rejecting this evidence

(irrelevance due to dissimilarity to digital penetration) as both acts tend to 

indicate ways in which A.D. had allowed Dugonjic to penetrate her sexual 

organs in the past. That said, we find the limited relevance of this evidence to 

be significantly outweighed by the overwhelming medical, physical, and 

testimonial evidence; the remoteness in time to the couple’s previous sexual 

relationship; and A.D.’s termination of the romantic relationship. Consent on a 

certain date does not equate to consent in perpetuity. Based on the foregoing, 

we conclude that any error in excluding the evidence of alleged acts of 

cunnilingus did not amount to reversible error. We therefore affirm Dugonjic’s 

convictions. 

Section 4 – The trial court acted within its discretion in its 

treatment of aggravating factors during sentencing. 

[31] Finally, Dugonjic challenges the trial court’s treatment of aggravating factors 

during sentencing. Sentencing decisions rest within the sound discretion of the 

trial court, and as long as a sentence is within the statutory range, it is subject to 

review only for an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 490 

(Ind. 2007), clarified on reh’g, 875 N.E.2d 218. An abuse of discretion occurs 

where the trial court’s decision is clearly against the logic and effect of the facts 

and circumstances before it, or the reasonable, probable, and actual deductions 

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to be drawn therefrom. Sloan v. State, 16 N.E.3d 1018, 1026 (Ind. Ct. App. 

2014). The trial court sentenced Dugonjic to concurrent terms of twelve years

for his class B felony conviction and one and one-half years for his class D 

felony conviction. Ind. Code §§ 35-50-2-5, -7 (2013). 

[32] Indiana Code Section 35-38-1-7.1 lists matters that may be considered by the 

trial court as aggravating and mitigating circumstances. Subsection (c) 

emphasizes that the list of statutory factors is not exhaustive, and subsection (d) 

allows the trial court to impose any sentence that is authorized by statute and 

permissible under the Indiana Constitution, regardless of the presence or 

absence of aggravators or mitigators. During sentencing, the trial court 

identified as an aggravating circumstance the extent to which Dugonjic’s 

conduct exceeded the elements of the charged offenses. The court also 

indicated concern over his unexplained possession of $10,000 in cash at the 

time of his conviction as evidence of intent to flee. Our supreme court has 

found the “nature and circumstances of a crime [to be] a proper aggravating 

circumstance” where the defendant’s conduct extends beyond the material 

elements of the offense. Gomillia v. State, 13 N.E.3d 846, 853 (Ind. 2014). Here, 

the force of Dugonjic’s digital penetration of A.D.’s vagina caused A.D. to 

suffer bleeding and pain. She also sustained injuries to her clitoris and labia 

minor crease, as well as injuries stemming from the force of his grip on her and 

her to fall to the pavement. When A.D. begged Dugonjic to dislodge his hand 

from her body, he grabbed her arm and attempted to shove her into his vehicle. 

The incident ended because A.D. was able to break away from Dugonjic’s grip 

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and run for help. The trial court did not abuse its discretion in identifying this 

aggravating factor.

[33] As for the $10,000 found on Dugonjic’s person on the day of his conviction, the 

trial court expressed its concern that the large sum of money implicated an 

intent to flee. Under the unique circumstances of this case, where the defendant 

is a nonresident of Indiana and a regular international traveler with a family 

abroad, we cannot say that the court’s identification of this factor is clearly 

against the logic and effect of the facts and circumstances before the court. 

[34] Essentially, Dugonjic’s sentencing argument amounts to excuses and 

explanations concerning the aggravating factors and invitations to assign a 

different weight to those factors as against the one identified mitigator, his lack 

of a criminal record. See, e.g., Appellant’s Br. at 34 (characterizing his lack of 

criminal history as “a mitigating circumstance entitled to substantial weight.”). 

We remind him that “[t]he relative weight or value assignable to reasons 

properly found or those which should have been found is not subject to review 

for abuse [of discretion].” Anglemyer, 868 N.E.2d at 491. We therefore affirm 

his sentence. 

[35] Affirmed.

Kirsch, J., and May, J., concur. 

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