No New Year's Cheer

I guess I shouldn't be surprised that the first appellate case of the year is a loss for the defense, but since it’s my case I hope it’s not an omen of things to come.

In State v. Herrera and Oernelas-Perez, Nos. 33241 and 33284, the defendants were convicted of conspiracy to traffic in heroin and of delivery of cocaine. The delivery conviction comes about as a lesser-included to the charged count of conspiracy to traffic in cocaine. Issue: Delivery is not a lesser-included offense of conspiracy under either the elements theory or as pleaded in the indictment. Problem: One defendant doesn't object to the "lesser-included" instruction and the other agrees with the court's decision to give it. Solution? Argue that giving the instruction on a crime which was neither charged nor a lesser-included of the charge exceeds the subject-matter jurisdiction of the trial court. Subject-matter jurisdiction, after all, can never be waived, right?

The Court of Appeals says it won't consider the lesser-included argument under the invited error doctrine. "Even if an improper lesser included offense instruction was given, the court's subject matter jurisdiction that was conferred via the indictment remained throughout the trial, for subject matter jurisdiction does not depend upon the correctness of any decision made by the court."

Query: If evidence came out during the trial that the co-defendants committed murder or knowingly used a stolen credit card would the trial court have subject-matter jurisdiction to instruct the jury on those uncharged offenses too?