Per Curiam:Steve Kelly Moyer's direct appeal returns to this court after a remand to the district court for a State v. Van Cleave , 239 Kan. 117, 716 P.2d 580 (1986), hearing to determine whether Moyer was denied his Sixth Amendment right to counsel, either because his trial counsel was not constitutionally conflict-free or was not constitutionally competent. State v. Moyer , 302 Kan. 892, 895, 935, 360 P.3d 384 (2015), as modified in 306 Kan. 342, 410 P.3d 71 (2017). When this court remanded the case for a determination of whether Moyer was provided effective assistance of counsel, it also reserved the question of cumulative error.
Kansas courts have generally held that the State can functionally elect a particular act by focusing its opening statement and closing arguments on the act upon which the jury is to rely on to convict the defendant. State v. Moyer, 302 Kan. 892, Syl. ¶ 7, 360 P.3d 384 (2015); State v. Dickson, 275 Kan. 683, 696–97, 69 P.3d 549 (2003); State v. Fulton, 28 Kan.App.2d 815, 821–22, 23 P.3d 167, rev. denied 271 Kan. 1039 (2001). But in State v. Colston, 290 Kan. 952, 969, 235 P.3d 1234 (2010), the Kansas Supreme Court said that merely focusing arguments is not a sufficient election because “this is not the same as informing the jury that it could not consider evidence of other acts supporting the same charge or that it must agree on the same underlying criminal act.”
[Citations omitted.]" State v. Moyer , 306 Kan. 342, 371, 410 P.3d 71 (2017). Dern asserts that Chief Judge Nafziger applied the wrong test in reviewing his affidavit because the order denying the motion for recusal did not explicitly state whether the affidavit was legally sufficient.
[22] This court exercises de novo review over whether a trial judge should have recused and whether the failure to do so war- rants setting aside a district court judgment. State v. Moyer, 306 Kan. 342, 369, 410 P.3d 71 (2017). [23] There are "at least three possible bases for litigants to seek recusal of a trial judge: [1] the Kansas Code of Judicial Conduct, Supreme Court Rule 601B, Canon 2, Rule 2.2 (2013 Kan. Ct. R. Annot. 735); [2] K.S.A. 20-311d(c); and [3] the Due Process Clause of the Fourteenth Amendment to the United States Constitution." State v. Moyer, 306 Kan. at 370, 410 P.3d 71.
Following a trial, a jury found Moyer guilty as charged. The circumstances of Moyer's convictions have been thoroughly set forth by the Kansas Supreme Court in State v. Moyer , 302 Kan. 892, 360 P.3d 384 (2015), as modified in 306 Kan. 342, 410 P.3d 71 (2017) (Moyer I ), and State v. Moyer , 309 Kan. 268, 434 P.3d 829 (2019) (Moyer II ), and are largely irrelevant to his present appeal. At sentencing, the district court ordered Moyer to serve a hard 25 sentence for the aggravated criminal sodomy conviction plus 118 months' imprisonment for the remaining convictions.
Our review of this issue is unlimited. See State v. Moyer, 306 Kan. 342, 369-70, 410 P.3d 71 (2017). There are at least three possible bases for a litigant to seek recusal of a district court judge in Kansas: (1) the statutory factors for change of judge as explained in K.S.A. 20-311d(c); (2) the standards in the Kansas Code of Judicial Conduct; and (3) the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
We have unlimited review over recusal questions, so we won't defer to Judge O'Connor's decision not to recuse himself. See State v. Moyer , 302 Kan. 892, 920, 360 P.3d 384 (2015).There are three sources of law that provide rules on when a judge should recuse himself or herself: (1) the statutory factors set out in K.S.A. 20–311d(c) ; (2) the standards of the Kansas Code of Judicial Conduct; and (3) the Due Process Clause of the Fourteenth Amendment to the United States Constitution. 302 Kan. at 920.
A litigant may argue that a judge's recusal is required in accordance with (1) the statutory factors set forth in K.S.A. 20-311d(c); (2) the standards of the Kansas Code of Judicial Conduct, Supreme Court Rule 601B, Canon 2, Rule 2.2 (2022 Kan. S.Ct. R. at 495); and (3) the Due Process Clause of the Fourteenth Amendment to the United States Constitution. State v. Moyer, 306 Kan. 342, 370, 410 P.3d 71 (2017).
[Citations omitted.]" State v. Moyer, 306 Kan. 342, 359, 410 P.3d 71 (2017); Santos-Vega, 299 Kan. at 18.
Appellate courts exercise de novo review over whether a trial court judge's recusal is required. State v. Moyer , 306 Kan. 342, 369, 410 P.3d 71 (2017) (addressing recusals based on due process and statutory factors). The interpretation of a Supreme Court rule, like the interpretation of a statute, is a question of law. Kansas Judicial Review v. Stout , 287 Kan. 450, 459, 196 P.3d 1162 (2008) (addressing the Kansas Code of Judicial Conduct).