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State v. Hurd

Supreme Court of Kansas

December 27, 2013

STATE of Kansas, Appellee,
Eric HURD, Appellant.

Sept. 16, 2011.

Page 697

[Copyrighted Material Omitted]

Page 698

Syllabus by the Court

1. An appellate court applies a three-step analysis in reviewing potential consolidation errors, utilizing a different standard of review at each step. First, the court considers whether K.S.A. 22-3203 permitted consolidation. Under that statute, multiple complaints against a defendant can be tried together if the State could have brought the charges in a single complaint. K.S.A. 22-3202(1) spells out the three conditions permitting the joining of multiple crimes in a single complaint. Whether one of the conditions is satisfied is a fact-specific inquiry, and the appellate court reviews the district court's factual findings for substantial competent evidence and the legal conclusion that one of the conditions is met de novo. Second, because K.S.A. 22-3202 provides that charges " may" be joined, a district court retains discretion to deny a request to consolidate even if a statutory condition is met. This decision is reviewed for an abuse of discretion. Finally, if an error occurred in the preceding steps, the appellate court considers whether the error resulted in prejudice, i.e., whether it affected a party's substantial rights.

Page 699

2. K.S.A. 22-3202(1) permits joining multiple charges in a single complaint if: (1) the charges are of the same or similar character; (2) the charges are part of the same act or transaction; or (3) the charges result from two or more acts or transactions connected together or constituting parts of a common scheme or plan.

3. Neither the legislature nor this court has permitted a district court's calendar considerations to provide a basis for joinder of criminal charges.

4. For purposes of joinder under K.S.A. 22-3202(1), charges result from two or more acts or transactions connected together when (1) the defendant provides evidence of one crime while committing another; (2) some of the charges are precipitated by other charges; or (3) all of the charges stem from a common event or goal.

5. When a defendant timely files a motion for arrest of judgment, an appellate court reviews whether the complaint was jurisdictionally defective, considering whether the complaint omits one or more of the essential elements of the crime it attempts to charge.

[298 Kan. 556] 6. Convictions based on jurisdictionally defective complaints are void.

7. If a conviction is found void pursuant to a motion for arrest of judgment, the defendant is placed in the same position the defendant was in before being charged, and the State can recharge the same allegations.

8. Kansas law provides at least three possible bases for litigants to seek recusal of a trial judge: the Code of Judicial Conduct, K.S.A. 20-311d, and the Due Process Clause of the Fourteenth Amendment to the United States Constitution.

9. Under K.S.A. 20-311d, a litigant may seek a trial judge's recusal by timely filing a motion for change of judge. If the judge denies the motion, the litigant may file an affidavit detailing the basis for the litigant's belief that the challenged judge cannot provide a fair trial, and the district's chief judge or the chief judge's designee reviews the affidavit for legal sufficiency. If the reviewing judge finds the affidavit to be legally insufficient and the defendant challenges that ruling on appeal, an appellate court examines the legal sufficiency of the affidavit de novo and determines whether the alleged facts give fair support for a well-grounded belief that the litigant cannot receive a fair trial. An affidavit is legally sufficient when the facts alleged create reasonable doubt about the judge's partiality in the mind of a reasonable person with knowledge of all the circumstances.

10. Complaints by a party against a judge, standing alone, are generally insufficient to require judicial recusal in a case involving that party.

11. K.S.A. 20-311d(d) specifically provides that previous rulings or decisions present a legally insufficient basis for a finding of judicial bias or prejudice.

12. Recusal is required under the Fourteenth Amendment to the United States Constitution's Due Process Clause when the judge is actually biased or there is a constitutionally intolerable probability of actual bias.

13. If a trial court [298 Kan. 557] concludes an attorney appearing before it has violated a rule of professional conduct, the court has the discretion to disqualify the attorney from the case.

Appeal from Seward District Court; Clint B. Peterson, Judge.

Christina M. Kerls, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Don L. Scott, county attorney, and Derek Schmidt, attorney general, were on the brief for appellee.



Following a consolidated trial, a jury convicted Eric Hurd of assault, battery, and criminal threat in one case and two counts of failure to register in another case. Hurd appealed his convictions, asserting nine errors, including challenges to the district court's decision to consolidate the cases, the trial judge's refusal to recuse, and the district court's refusal to find the complaint to be jurisdictionally defective. The Court of

Page 700

Appeals rejected each error and affirmed Hurd's convictions and sentences. State v. Hurd, No. 104,198, __ Kan.App.2d __, 2011 WL 4357826 (Kan.App.2011) (unpublished opinion). We granted Hurd's petition for review.

Because we conclude the district court erred in consolidating the two cases, we reverse Hurd's convictions and remand for separate trials. We also agree with Hurd that the complaint charging him with two counts of failing to register was jurisdictionally defective, but we conclude the State is not prevented from recharging Hurd. We reject Hurd's challenges to the sufficiency of the evidence of criminal threat. In light of our remand for new trials, we do not address the remainder of Hurd's asserted errors with two exceptions. Because the issues are likely to arise on remand, we reject Hurd's allegations of alleged bias on the part of the trial judge, and we conclude the district court erred in determining it lacked authority to disqualify the prosecutor.


Frank Hurd (Frank) called police to his rural Seward County [298 Kan. 558] home after a confrontation between him and his adult son, Eric Hurd. Frank reported that Hurd was staying with him and that he had given Hurd a pickup truck. According to Frank, he asked Hurd to move the truck because Frank's other son, Jonathan Hurd, was bringing some items to store in the basement and Hurd's truck was blocking the garage.

Shortly thereafter, Hurd confronted Frank as Frank sat in his home office. Hurd entered the office screaming, calling Frank names, and threatening to " beat [Frank's] ass." Hurd grabbed a mechanical pencil from Frank's hand and threw it against the wall, then grabbed Frank's shirt and shoved him against the wall and into a bookcase.

" [F]igur[ing] two against one would be a little better odds," Frank got by Hurd and telephoned Jonathan, requesting he come to the house. Hurd, who had been listening to the phone call, told Frank that if Jonathan came to the house he would attack Jonathan. Frank called Jonathan again and instructed him not to come. Hurd then left the farm in his truck but was arrested later that day after a responding officer called in the truck's description and tag number.

The State charged Hurd with making a criminal threat against Jonathan and battery and assault of Frank, but later amended the assault charge to aggravated assault with a deadly weapon, i.e., the mechanical pencil.

A few days after Hurd's arrest, the Seward County Sheriff's Officer in charge of offender registration learned of Hurd's arrest and that Hurd had been living in Seward County. The officer knew Hurd was required to register as a sex offender because Hurd had registered with the Seward County Sheriff's Office in February 2008, but the officer had later heard from the Kansas Bureau of Investigation that Hurd had moved to Oklahoma. Based on Hurd's reappearance in Seward County, the State filed a separate complaint ...

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