James R. Ferguson v. State of Indiana

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MEMORANDUM DECISION - NOT FOR PUBLICATION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