Improper consolidation requires new trial

Christina M. Kerls won in State v. Hurd, No. 104,198 (Kan. Dec. 27, 2013), obtaining a new trial in a consolidated Seward County criminal threat and failure to register prosecution.  The KSC noted that K.S.A. 22-3202, governing consolidation does not permit the district court to consider its calendar as a basis for consolidation.  The KSC went on to show that the district court had erred by finding that the charges in this case were connected:

As we have noted, the phrase "connected together" applies if the defendant provides evidence of one crime while committing another. Anthony involved that very scenario, as the defendant unwittingly provided evidence of one crime while committing another. In contrast, Hurd did not provide evidence of the registration violation while committing the assault, battery, and criminal threat. Instead, Frank provided evidence relevant to the registration violation when he later reported the assault to law enforcement. And here, unlike in Anthony, the State could easily have introduced evidence to prove the assault, battery, and criminal threat charges without proffering the evidence needed to prove the failure to register charges or vice versa. 

Thus, we conclude that the facts here do not substantially demonstrate the defendant provided evidence of one crime while committing another. Nor does the State suggest that the facts satisfied either of the remaining two bases for finding the cases to be "connected together" so as to permit joinder.

The KSC went on to reiterate that the burden of showing a lack of prejudice from the wrongful consolidation was on the state and that it had not met that burden in this case.

Mr. Hurd had filed a motion for arrest of judgment claiming the charging documents related to failure to register were defective:

Further, contrary to the panel's holding in this case, the State did not merely charge alternative theories of the same crime. The final charging document blended language from two different statutory provisions, creating confusion as to which provision Hurd was charged with. While amending a complaint to charge alternative theories may be proper, blending statutory provisions so no crime is charged is not.

As a result, the KSC held that the failure to register convictions were void.