                                                                    FILED
 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                              Oct 31 2012, 9:10 am
 establishing the defense of res judicata,
 collateral estoppel, or the law of the case.                            CLERK
                                                                       of the supreme court,
                                                                       court of appeals and
                                                                              tax court




ATTORNEY FOR APPELLANT:                              ATTORNEYS FOR APPELLEE:

JILL M. ACKLIN                                       GREGORY F. ZOELLER
Acklin Law Offices, LLC                              Attorney General of Indiana
Westfield, Indiana
                                                     MICHAEL GENE WORDEN
                                                     Deputy Attorney General
                                                     Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

JAMES R. FERGUSON,                                   )
                                                     )
       Appellant-Defendant,                          )
                                                     )
               vs.                                   )       No. 48A02-1110-CR-968
                                                     )
STATE OF INDIANA,                                    )
                                                     )
       Appellee-Plaintiff.                           )


                      APPEAL FROM THE MADISON CIRCUIT COURT
                          The Honorable Dennis D. Carroll, Judge
                              Cause No. 48D01-0608-FB-271


                                          October 31, 2012

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

VAIDIK, Judge
                                     Case Summary

       James R. Ferguson appeals his conviction for Class C felony sexual misconduct

with a minor. Ferguson contends that he was erroneously convicted of Class C felony

sexual misconduct with a minor, a crime with which he was never charged, because the

jury was erroneously instructed that it was a lesser-included offense of Class B felony

child molesting. Because Ferguson is the one who tendered the instruction on Class C

felony sexual misconduct with a minor and the trial court had subject-matter jurisdiction

over this case, we affirm.

                              Facts and Procedural History

       In June 2006, Detective Mark Cole from the Anderson Police Department became

aware of allegations that Ferguson had molested his biological daughter, L.F., in the

summer of 1997 at Ferguson’s home on Seminole Drive in Anderson. L.F., who was

born April 12, 1984, was thirteen years old in the summer of 1997. L.F. told her

boyfriend at the time, but nothing was reported to authorities until 2006, at which time

Detective Cole spoke with L.F.

       The State initially charged Ferguson with Class B felony child molesting and

Class B felony incest.

       After Ferguson was arrested for child molesting and incest, he called L.F. from jail

in an effort to discourage her from testifying against him and even to change her story

about what had happened. Ferguson’s phone calls made it more difficult for L.F. to come

to court and testify against him.




                                            2
       The State added counts of repeat sexual offender and Class D felony attempted

obstruction of justice against Ferguson.

       At trial in May 2008, L.F. was twenty-four years old. L.F. testified that during

“the warm weather months of 1997,” while Ferguson was living on Seminole Drive, he

began rubbing her feet; Ferguson then touched her underneath her “panties” and

proceeded to put his finger inside her labia near her vaginal opening. Tr. p. 42, 43-45.

Ferguson, however, presented evidence that he lived on Seminole Drive no earlier than

1998, when L.F. would have been fourteen years old. Id. at 142-43, 145-46; see also id.

at 149-51 (testimony that he lived there in 2001).

       During the final-instruction conference, Ferguson himself tendered a jury

instruction on Class C felony sexual misconduct with a minor as a lesser-included offense

of Class B felony child molesting. Id. at 171-76. Sexual misconduct with a minor

requires the victim to be fourteen or fifteen years old—not under fourteen years old like

child molesting. Compare Ind. Code § 35-42-4-9 with Ind. Code § 35-42-4-3. The trial

court gave the jury the sexual-misconduct-with-a-minor instruction. Tr. p. 200.

       The jury found Ferguson guilty of Class C felony sexual misconduct with a minor

as a lesser-included offense of Class B felony child molesting, not guilty of Class B

felony incest, and guilty of Class D felony attempted obstruction of justice.       In a

bifurcated proceeding, Ferguson pled guilty to the repeat sexual offender charge. The

trial court sentenced Ferguson to an aggregate term of fourteen years. Ferguson did not

object when the trial court entered judgment of conviction and sentenced him for Class C

felony sexual misconduct with a minor.


                                             3
         Ferguson was later resentenced to an aggregate term of ten years.1 Appellant’s

App. p. 129.

         Ferguson now appeals his conviction for Class C felony sexual misconduct with a

minor.

                                     Discussion and Decision

         Ferguson contends that he was erroneously convicted of Class C felony sexual

misconduct with a minor, a crime with which he was never charged, because the jury was

erroneously instructed that it was a lesser-included offense of Class B felony child

molesting. The State responds that Ferguson has waived this claim because Ferguson is

the one who tendered the instruction.

         The record shows that the trial court instructed the jury that Class C felony sexual

misconduct with a minor was a lesser-included offense of Class B felony child molesting

and that the jury could convict Ferguson of the lesser-included offense if it did not find

that Ferguson committed the greater offense. Tr. p. 200. Ferguson did not object. In

fact, Ferguson invited this error by tendering the instruction for Class C felony sexual

misconduct with a minor and then arguing to a skeptical trial court that Class C felony

sexual misconduct with a minor was, in fact, “a lesser-included of the B Felony Child

Molest.”2 Id. at 175 (trial court noting, “You think that’s right?”). Not only does the


         1
          Ferguson appealed but then pursued a Davis-Hatton procedure, where the appeal was dismissed
without prejudice so that he could seek post-conviction relief. Ferguson was successful on post-
conviction because his repeat sexual offender enhancement was vacated, shaving four years off his
sentence.
         2
           The State does not argue on appeal that Class C felony sexual misconduct with a minor is a
lesser-included offense of Class B felony child molesting, and for purposes of this appeal we presume that
it is not.

                                                    4
failure to object to an instruction waive any challenge to that instruction on appeal, Baker

v. State, 948 N.E.2d 1169, 1178 (Ind. 2011), reh’g denied, but more significantly it is

well-settled law that a party may not invite error and then later argue that the error

supports reversal, Dumas v. State, 803 N.E.2d 1113, 1121 (Ind. 2004). Because Ferguson

is the one who tendered the instruction on Class C felony sexual misconduct with a minor

as a lesser-included offense of Class B felony child molesting, he may not have his

conviction reversed based on the very instruction that he wanted the jury to receive.

        In an apparent effort to avoid waiver, Ferguson argues that the trial court lacked

subject-matter jurisdiction, which cannot be waived, because he was never charged with

Class C felony sexual misconduct with a minor. Subject-matter jurisdiction entails a

determination of whether a court has jurisdiction over the general class of actions to

which a particular case belongs. K.S. v. State, 849 N.E.2d 538, 542 (Ind. 2006). Subject-

matter jurisdiction must be derived from the constitution or statutes and cannot be

conferred by the consent or agreement of the parties. Truax v. State, 856 N.E.2d 116, 122

(Ind. Ct. App. 2006).

        In Indiana, circuit courts have original and concurrent jurisdiction in criminal

cases. Ind. Code § 33-28-1-2(a)(1).3 Sexual misconduct with a minor is a felony and

therefore a criminal case.          Accordingly, Madison Circuit Court had subject-matter

jurisdiction over this criminal case. We therefore affirm Ferguson’s conviction for Class

C felony sexual misconduct with a minor.

        3
          When Ferguson was charged and convicted, the trial court was called Madison Superior Court
1. Now, however, the court is called Madison Circuit Court 6. See Ind. Code § 33-33-48-12 (noting that
Madison circuit court is a court of general jurisdiction with six judges) (eff. July 1, 2011). This does not
matter because standard superior courts also have original and concurrent jurisdiction in criminal cases.
See Ind. Code § 33-29-1-1.5(1).
                                                     5
      Affirmed.

MATHIAS, J., and BARNES, J., concur.




                                       6
