Dugonjic v. State, Court of Appeals Case No. 29A02-1512-CR-2281
| Decision Date | 30 November 2016 |
| Docket Number | Court of Appeals Case No. 29A02-1512-CR-2281 |
| Parties | Muhamed Dugonjic, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff |
| Court | Indiana Appellate Court |
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
Bargersville, Indiana
ATTORNEYS FOR APPELLEE
Gregory F. Zoeller
Attorney General of Indiana
Justin F. Roebel
Deputy Attorney General
Indianapolis, Indiana
Appeal from the Hamilton Superior Court
The Honorable Steven R. Nation, Judge
[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.
[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 couplesometimes 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 tobreak. 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.
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.
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 thejury 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:
Id. at 324. See also Ind. Code § 35-42-4-8 (2013) (...
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