dissenting: I dissent for two reasons: (1) I believe the statute defining conspiracy, K.S.A. 21-3302(a), does create a sufficiency of the evidence problem when the complaint fails to allege any overt act; and (2) I continue to be baffled by this court’s stubborn adherence to the jurisdiction-by-waiver rule that was manufactured from whole cloth in State v. Hall, 246 Kan. 728, 793 P.2d 737 (1990), overruled in part on other grounds by Ferguson v. State, 276 Kan. 428, 78 P.3d 40 (2003).
Like the majority, I will start by accepting the premise that the complaint in this case was defective because it failed to meet the K.S.A. 21-3302(a) requirement that the overt act in furtherance of the conspiracy must be alleged in the charging document. Simply put, the complaint in this case was missing a necessary element of the crime.
With respect to the question of the evidence sufficiency, I also agree with die majority’s assertion that “K.S.A. 21-3302(a) clearly requires that an overt act be alleged and that an overt act be proven. Nevertheless, there is no requirement that the State prove to the factfinder that it had alleged the overt act.” State v. Tapia, (No. 100,596, this day decided) slip op. at 15. Obviously, the jury need not be concerned with what the prosecutor put into the charging document, because the sufficiency of a complaint, like the sufficiency of the evidence, is a legal question to be determined by a judge, not a jury.
*1000But the majority’s disconnect, in my view, is in considering the elements of conspiracy to be simply an agreement and an overt act in furtherance of the conspiracy. Thereafter, the majority proceeds as if there is no legal connection whatsoever between the overt act alleged and the overt act proven. The suggestion is that if evidence exists from which the jury could reasonably find that the defendant or a coconspirator committed any overt act, then the evidence is sufficient to support the conviction. Yet the statute does not permit a person to be convicted of a conspiracy unless “an overt act in furtherance of such conspiracy is alleged and proved to have been committed by such person or by a co-conspirator.” (Emphasis added.) K.S.A. 21-3302(a). I cannot read that language as permitting the State to allege one overt act [or no overt act] and then prove another overt act. To the contraiy, in order to satisfy the majority’s second element—an overt act—the State must prove that the defendant or a coconspirator committed the specific overt act that the State’s charging document alleged was committed. Cf. State v. Chaffee, 36 Kan. App. 2d 132, 142, 137 P.3d 1070 (2006) (State cannot charge aggravating kidnapping to facilitate murder and then convict defendant of kidnapping to facilitate some other crime not identified in information).
Here, the State failed to “allege and prove” an overt act in furtherance of the charged conspiracy because it failed to allege an overt act. Obviously, there can never be sufficient evidence to prove an alleged overt act, as clearly required by K.S.A. 21-3302(a), where there has been a failure to allege any overt act. In other words, one cannot prove that which does not exist. The fact that the State may have presented evidence from which a jury could rationally find the existence of overt acts which the State did not allege is of no consequence here. The State failed to present sufficient evidence to support the “allege and prove” overt act element which was statutorily necessaiy for a conspiracy conviction. I would reverse based upon an insufficiency of the evidence of the crime of conspiracy, as charged.
Figuratively mounting my donkey and taking up my lance, I charge toward the windmill disguised as the Hall rule. As the majority describes, under the “-pre-Hall” standard, if a charging doc*1001ument “does not set out the essential elements of the crime, it is fatally defective and the conviction must be reversed for lack of jurisdiction. [Citation omitted.]’ Shirley, 277 Kan. at 661-62.” (Emphasis added.) Tapia, slip op. at 9. In other words, if a complaint is missing essential elements of the charged crime, the district court does not have subject matter jurisdiction to convict the defendant of that crime.
Yet Hall established a new rule for complaint challenges where tire defendant had failed to challenge the defective complaint in the district court through a motion for arrest of judgment. Under that new rule, the defendant must establish certain prejudice, impairment, or limitation of constitutional rights in order to obtain a conviction reversal for a defective complaint. See State v. Portillo, 294 Kan. 242, 254-55, 274 P.3d 640 (2012). In essence, by failing to file a motion for arrest of judgment in the district court, a defendant waives tire jurisdictional claim arising from a charging document with a missing element. As I shared in my dissent in State v. Inkelaar, 293 Kan. 414, 444, 264 P.3d 81 (2011):
“I cannot square that approach with the rather fundamental principle that subject matter jurisdiction may be raised at any time, whether for the first time on appeal or even on the appellate court’s own motion. State v. Sales, 290 Kan. 130, 135, 224 P.3d 546 (2010). Moreover, a party’s failure to challenge a district court’s jurisdiction cannot create subject matter jurisdiction where it did not already exist. State v. Hoffman, 45 Kan. App. 2d 272, 275, 246 P.3d 992 (2011) (parties cannot confer subject matter jurisdiction by consent, waiver, or estoppel; a failure to object to the court’s jurisdiction does not invest the court with the requisite subject matter jurisdiction).”
The majority’s continued use of Hall’s court-made exception to a jurisdictional rule is particularly curious, given that the author and most of the members of this majority recently voted unanimously to “overrule Johnson v. American Cyanamid Co., 243 Kan. 291, 758 P.2d 206 (1988), and Schroeder v. Urban, 242 Kan. 710, 750 P.2d 405 (1988), to the extent they authorize an exception to a jurisdictional rule.” Board of Sedgwick County Comm’rs v. City of Park City, 293 Kan. 107,120, 260 P.3d 387 (2011). In that Park City case, we definitively declared that “ ‘this Court has no authority to create equitable exceptions to jurisdictional require-*1002merits.’ ” 293 Kan. at 120 (quoting Bowles v. Russell, 551 U.S. 205, 214, 127 S. Ct. 2360, 168 L. Ed. 2d 96 [2007]). Yet the majority clings to Hall’s jurisdictional exception under the guise that Tapia has not specifically asked us to jettison it. I would submit that the Hall exception to fhe jurisdictional defect of elements missing from a charging document “deserves a proper burial,” and that “[w]e should administer last rites with this opinion.” State v. Bryant, 272 Kan. 1204, 1210, 38 P.3d 661 (2002) (Six, J., concurring; referring to res gestae as an independent evidentiary concept).
Beier, J., joins the foregoing dissenting opinion.