              IN THE SUPREME COURT OF THE STATE OF KANSAS

                                        No. 106,741

                                    STATE OF KANSAS,
                                        Appellee,

                                             v.

                                THOMAS EUGENE JENKINS,
                                      Appellant.


                              SYLLABUS BY THE COURT



1.
       When a defendant challenges the sufficiency of the evidence, an appellate court
reviews the evidence in a light most favorable to the State and upholds the conviction if it
is convinced that a rational fact-finder could have found the defendant guilty beyond a
reasonable doubt. The court does not reweigh the evidence or pass on the credibility of
witnesses.


2.
       A conviction of even the gravest offense can be based entirely on circumstantial
evidence and the inferences fairly deducible therefrom. If an inference is a reasonable
one, the jury has the right to make the inference.


3.
       When considering whether a new trial is warranted based on juror misconduct, the
trial court first considers whether there was a fundamental failure in the proceeding. If a
fundamental failure did occur, the trial court moves to the second step and considers
whether the party benefitting from the failure has shown the trial can continue without an
                                             1
injustice, meaning the party has shown beyond a reasonable doubt that the failure did not
affect the outcome of the trial. An appellate court reviews the trial court's decision in two
parts. It reviews the conclusion on whether a fundamental failure occurred for an abuse of
discretion. As for the second question—whether any failure resulted in injustice—an
appellate court does not review the district court's decision for abuse of discretion but
considers the entire record and performs its own constitutional harmless error review.


4.
        If a court failed to suspend proceedings and conduct a competency hearing in
accordance with K.S.A. 22-3302, a retrospective hearing may rectify the error.


5.
        To determine whether it is feasible to retrospectively determine the defendant's
competency at the time of the trial, a court considers the following four factors: (1) the
passage of time; (2) the availability of contemporaneous medical evidence, including
medical records and prior competency determinations; (3) any statements by the
defendant in the trial record; and (4) the availability of individuals and trial witnesses,
both experts and non-experts, who were in a position to interact with the defendant before
and during trial, including the trial judge, counsel for both the government and the
defendant, and jail officials.


        Appeal from Saline District Court; JEROME P. HELLMER, judge. Opinion filed July 27, 2018.
Affirmed.


        Gerald E. Wells, of Jerry Wells Attorney-at-Law, of Lawrence, argued the cause and was on the
brief for appellant.


        Ellen H. Mitchell, county attorney, argued the cause, and Derek Schmidt, attorney general, was
with her on the brief for appellee.

                                                   2
The opinion of the court was delivered by


          ROSEN, J.: Thomas Jenkins appeals from his convictions for first-degree murder,
two counts of aggravated burglary, theft, three counts of criminal threat, two counts of
domestic battery, and criminal restraint. Finding no error on the part of the trial court, we
affirm.


                          FACTUAL AND PROCEDURAL BACKGROUND


          On June 13, 2009, at approximately 6 a.m., officers responded to a call about
potential burglaries of two different apartments in a complex at 1012 Johnstown in
Salina, Kansas. When the officers arrived, Benjamin Friedman informed them that
someone had burglarized his apartment and stolen some of his electronics. The officers
inspected a second apartment, occupied by Alfred Mack and Jason Hartfield, and noticed
damage to the front door. Upon entering that apartment, the officers found Mack's body
lying on the floor. Mack had been killed by a gunshot wound to his chest.


          The State theorized that Thomas Jenkins colluded with Willie Parker, Justin
Letourneau, and Travis Graham to burglarize Mack's and Friedman's apartments and that
Parker shot and killed Mack as Parker and Jenkins carried out the burglary in Mack's
apartment. The State charged Jenkins with first-degree murder under theories of
premeditation and felony murder, solicitation to commit first-degree murder, two counts
of aggravated burglary, and theft. The State also charged Jenkins with three counts of
criminal threat, two counts of domestic battery, and criminal restraint based on events
that took place after June 13, 2009.




                                               3
       The facts supporting those charges are as follows:


       On June 12, 2009, at 10 p.m., Mack and Hartfield were both at home. At 12:30
a.m., a Pizza Hut employee delivered a food order to their apartment. The employee
testified that there was nothing unusual about Mack's front door. Hartfield ate with Mack
and left the apartment around 12:45 a.m.


       On the same evening, Friedman went to a movie with his girlfriend around 9 p.m.
and then returned home to his apartment. When he arrived home, he had three house
guests—Todd Gribble, Jacob Ward, and Logan Bohochik. Friedman was in bed by
12 a.m.


       At 2:09 a.m., officers responded to a call about a loud party at Friedman's
apartment. Gribble and Ward left after the officers arrived. The officers left the apartment
at 2:35 a.m. and Bohochik locked the front door and went to bed in one of the bedrooms.
Gribble, Ward, and Bohochick all testified that Friedman's television, movies, and
gaming equipment were in the apartment when they left or went to bed.


       Nathanial Johnson lived with Donyell Smith in another apartment in the same
complex. Fifteen to twenty minutes after the police left Friedman's apartment, Johnson
saw Jenkins outside his apartment window and went to speak with him. During the
conversation, Jenkins pointed towards an open sliding door on the balcony of Friedman's
apartment. Johnson told Jenkins that the people who lived there had been partying and
were probably asleep. Smith testified that sometime after the police left Friedman's
apartment and before she went to bed, she saw Jenkins with a black man and a white man
outside the apartment she shared with Johnson. Parker is black; Letourneau and Graham
are white.


                                             4
       Shortly after 4:45 a.m. on June 13, Friedman heard a loud bang and someone
rushing down some stairs. Friedman went to his living room and noticed the sliding door
to the balcony was open. He also noticed his flat screen television, some DVDs, some
video games, his PlayStation 3, and his car keys (to a car that did not run) were missing.
Friedman later found his keys in his vehicle.


       After discovering his property was missing, Friedman went to the front door of
Mack's apartment and noticed it looked like someone had shattered the door lock. He
knocked on Mack's door, but no one answered. Friedman called 911 at 5:17 a.m.


       Officers arrived at Mack's apartment sometime between 5:55 and 6 a.m. Mack's
door was not completely shut, there was a shoeprint on the door, and the strike plate was
on the ground. The letters in the shoeprint spelled "Servus." When the officers knocked
on the door, it opened, and they saw Mack's body on the floor. Upon entering, one of the
officers observed a single shell casing from a .22 caliber bullet just inside the door.


       At trial, the State tried to establish that Jenkins had decided to break into Mack's
apartment the day before Mack's death to steal money and drugs. Stanley McSwain
testified that the day before Mack's death, McSwain and Charles Bates were with Jenkins.
McSwain heard Bates tell Jenkins "I've got a lick for you." McSwain understood this to
mean "a way to get over on somebody." Bates said that "the lick" was on Johnstown and
the occupants would be out of town for a concert. McSwain understood Bates to be
referring to the Johnstown apartment complex. An investigator testified that McSwain
told him Bates had provided this information because Jenkins had been telling the men
that he was worried about money. The investigator also testified that Bates wanted a
television in return for the tip. Bates denied having this conversation or meeting with
Jenkins and McSwain when he testified at trial.


                                                5
       The State argued to the jury that Jenkins had kicked in Mack's door to facilitate the
burglary. It used statements and testimony from Kendra Jenkins (Kendra), Jenkins' wife,
to support this argument. At trial, the State introduced a pair of boots with a sole that
spelled "Servus"—the same marking in the footprint on Mack's door. Kendra testified
that Jenkins wore a pair of identical boots when he worked at Russell Stover. An
investigator testified that Kendra told her Jenkins tried to burn his work boots a few days
after Mack's death.


       The State built much of the remainder of its case on comments that Kendra made
during police interviews and on the testimony of Hassan Williford, the father of Kendra's
son. An investigator testified that Kendra told her that on June 13, Jenkins, Parker, and
Letourneau were at her house when she arrived home sometime after 2 a.m. with her
friend, Jackie Colvin. Kendra and Colvin eventually left and met up with Williford. The
three of them made various stops before Kendra and Williford parted ways with Colvin
and went for a drive.


       Sometime between 4 and 5 a.m., Kendra received a phone call. She told Williford
he needed to be quiet because it was Jenkins calling. Williford testified that he could hear
both sides of the conversation during this phone call because the volume was on the
loudest setting. Williford heard Kendra ask the person on the phone what he was doing,
and the person responded "sitting outside the place" and that "he had to get off the phone
because he was—he was about to go handle what he had to handle and he'd call her back
when he got done." The person called back 15 to 20 minutes later. Williford testified that
Kendra asked the caller if he had done what he was going to do, and the caller said
"'[y]eah, that he got some miscellaneous objects from whatever he was going to do, and
for her to meet him back at the house because they had to get rid of some things.'"
Williford also heard the person say that "'[s]ome things got kicked off but I took care of
the situation.'"
                                              6
       Kendra returned home from her drive with Williford sometime between 6 and 7
a.m. and saw Jenkins, Parker, and Letourneau in her living room. Kendra went to bed
and, when she woke up, the men were not there.


       Kendra confirmed the occurrence of some of these events during her trial
testimony, but could not recall them all, and remembered some of them differently.
Colvin eventually confirmed that she had been with Kendra and Williford on June 13, but
she first told investigators that Jenkins had been with her and Kendra from the time the
women returned home from the bars until 5 or 6 a.m. One of investigators testified that
Colvin told him she lied because Jenkins "needed an alibi." Colvin testified that she lied
because Kendra had asked her to but also because she thought her husband would be less
angry if she was out with a married couple.


       Kendra Yanik-Ducharme, the common-law wife of Letourneau, and Tiffany
Wellman, the mother of Parker's son, also testified for the State. Yanik-Ducharme
testified that Letourneau woke her in the morning of June 13 when it was still dark
outside and he had television and a PlayStation 3 with him. The television remained at
her house for a few days and then Parker and Letourneau took it to Wichita.


       At the time of Mack's death, Parker lived with Wellman. Wellman testified that
when she woke up on June 13, Parker, Letourneau, and maybe Letourneau's brother,
Travis Graham, were at her house. Parker and Letourneau eventually left but returned
later in the day with a PlayStation and movies.


       On June 19, 2009, police received a new lead. On that day, an officer was
dispatched to Salina Regional Health Center, where she found Letourneau unresponsive
in the passenger seat of a car. Parker was standing by the car and told the officer that he
                                              7
had killed Letourneau. Police obtained a warrant to search the car and Parker's house.
An evidence technician found a .22 Super X cartridge case in the car. When an officer
searched Parker's residence, he found .22 caliber Super X shells and a PlayStation 3. The
serial number on the PlayStation matched the serial number on the PlayStation removed
from Friedman's apartment. At trial, a forensic scientist of the KBI lab would testify that
the cartridge case at Mack's apartment and the cartridge case in the car were fired from
the same gun.


       An investigator interviewed Jenkins on June 27, 2009. Jenkins told the
investigator that he was close to Letourneau and Parker and he also knew Graham and
Bates. Jenkins stated that his last job had been three weeks earlier, at Russell Stover.
When questioned about his activities on June 12 and June 13, Jenkins said he had been
home when Colvin and Kendra returned from the bars around 1:30 a.m. and that the three
of them then left together to get Kendra's car from the bar. Jenkins told the investigator
that they all returned home and then Kendra and Jackie left again. Jenkins said that
Letourneau and Parker came over to his house on June 13, 2009. Jenkins also stated that
he did not know Mack and did not know where Johnstown Street was.


       On September 14, 2009, Kendra contacted the police and told them she had
recently decided to leave Jenkins and feared for the lives of herself, her son, and her
parents. She described several incidents that had occurred since Mack's death. On August
12, 2009, Jenkins pulled her out of a car by her hair and demanded she contact police and
tell them she had lied to them. In late August, Jenkins punched Kendra in the mouth
when he discovered her journal. Jenkins called her a "snitch bitch" because of the things
she had written in the journal. Sometime after June 13, but before she contacted police,
Jenkins locked Kendra and her son in a closet because of "the information that she knew
regarding the Al Mack homicide." Jenkins had friends come over after he locked Kendra
in the closet because "she was going to turn him in for the information that she knew"
                                              8
and he wanted the friends "to hear what she was going to tell the police so then that way
if he was arrested or whatnot somebody knew that it was her that had snitched on him."
During the same period, Jenkins also threatened to kill Kendra and her son and told
Kendra's son that he was going to kill his mommy. These incidents would serve as the
basis for the State's charges of criminal threat, domestic battery, and criminal restraint.


       The State filed a complaint against Jenkins on October 12, 2009. On March 21,
2011, a jury found Jenkins guilty of first-degree murder under theories of premeditation
and felony murder, of aggravated burglary of Mack's apartment, aggravated burglary of
Friedman's apartment, theft of the items missing from Friedman's house, two counts of
criminal threat against Kendra, one count of criminal threat against Kendra's son, two
counts of domestic battery against Kendra, and one count of criminal restraint of Kendra.
The district court sentenced Jenkins to life imprisonment with the possibility of parole in
20 years for the first-degree murder conviction. The district court imposed prison
sentences of 136 months and 34 months for the two aggravated burglary convictions, 6
months for the theft conviction, and 6 months for each the three criminal threat
convictions, all to run consecutive to the murder conviction. For the two convictions of
domestic battery and one conviction of criminal restraint, the district court sentenced
Jenkins to jail time for periods of 6 months, 6 months, and 12 months, to run concurrent
with the other convictions. Jenkins appealed.


Juror Misconduct


       On December 30, 2011, while the case was on appeal, the prosecutor in Jenkins'
case sent a letter to Jenkins' trial counsel and Jenkins' appellate counsel informing them
that, on December 20, 2011, she had received a poinsettia, some chocolates, and some
cards from one of the jurors (G.M.) in Jenkins' case. The prosecutor's investigator
returned the gifts and notes to G.M. along with a letter from the prosecutor explaining
                                              9
that she had received the gifts but could not keep them because he had been a juror in the
case.


        On January 17, 2012, Jenkins filed a motion in this court to "suspend briefing
schedule and to remand to the district court for purposes of a hearing on juror
misconduct." We retained jurisdiction and granted the motion on January 30, 2012.


        In February 2012, G.M. left a message with the receptionist in the prosecutor's
office wishing the prosecutor a Happy Valentine's day.


        The district court held a hearing on May 31, 2012. It heard testimony from the
prosecutor; G.M.; and Michael Rogers, an investigator with the Saline County Attorney's
office. The prosecutor testified about the correspondence and gifts she had received from
G.M. She explained that she had no contact with G.M. during the trial and did not see
him again until September 2011, when she was trying another case and saw G.M. in the
hallway of the courthouse. G.M. testified that he and his wife split up in June 2011 and he
saw the prosecutor in the courthouse when he was waiting for his divorce lawyer. G.M.
testified that he had no feelings for the prosecutor during the trial and showed her side no
favoritism. Based on this testimony, the district court found there was no evidence of
juror misconduct.


        In February 2013, the prosecutor sent another letter to trial and appellate counsel
informing them that G.M. had again sent her flowers and chocolates. On April 19, 2013,
on Jenkins' motion, we again retained jurisdiction and remanded the case to the district
court for another determination on whether juror misconduct had occurred.


        At the second hearing, the district court once more heard testimony from the
prosecutor and G.M. G.M. testified that he did not begin to think about being friends with
                                             10
the prosecutor until after the trial was over and that feelings for the prosecutor had not
influenced his verdict in the case. Defense counsel informed the court that he had an
investigator contact seven other jurors about potential juror misconduct and that none of
the jurors felt the integrity of the verdict had been compromised. The district court again
concluded there was no evidence of juror misconduct.


Retrospective Competency Hearing


       On September 22, 2014, while his appeal was pending, Jenkins filed a motion in
this court "for an order to show cause, or, in the alternative, a remand to the district court,
or in the alternative, of clarification." The motion explained that Jenkins had moved for a
competency determination before his trial when a letter he wrote prompted jail officials
to put him on suicide watch. Jenkins asked this court for an order to show cause why his
convictions should not be vacated or, in the alternative, to remand to the district court for
clarification on whether there had been an order on his competency. On October 6, 2014,
we retained jurisdiction and remanded the case to the district court to resolve the
competency issue.


       The district court apparently concluded that no competency determination had
been made and held a hearing to decide whether a retrospective determination was
feasible. The court heard testimony from Pam Bantam-Cooper, the psychologist who
conducted a competency evaluation on Jenkins when he initially moved for the
competency determination; an expert psychologist; a nurse at the jail where Jenkins was
held; the judge who presided over Jenkins' trial; the prosecutor in Jenkins' case; and
Jenkins' trial counsel. The court found that a retrospective competency determination was
feasible and that Jenkins had been competent at the time of his trial.




                                              11
       On appeal, Jenkins presents three issues: (1) the evidence was insufficient to
support his convictions of first-degree murder, two counts of aggravated burglary, and
theft; (2) the district court erred when it found no evidence of juror misconduct; and (3)
the district court erred when it concluded that a retrospective competency hearing was
feasible. We address each issue in turn.


                                           ANALYSIS


Sufficiency of the Evidence


       Jenkins argues there was insufficient evidence to support his convictions of
aggravated burglary, theft, and first-degree murder.


       When a defendant challenges the sufficiency of the evidence, we review the
evidence in a light most favorable to the State and uphold the conviction if we are
convinced that a rational fact-finder could have found the defendant guilty beyond a
reasonable doubt. We do not reweigh the evidence or pass on the credibility of witnesses.
State v. Brown, 306 Kan. 1145, 1157, 401 P.3d 611 (2017) (quoting State v. Potts, 304
Kan. 687, Syl. ¶ 1, 374 P.3d 639 [2016]).


       "'[A] conviction of even the gravest offense can be based entirely on
circumstantial evidence and the inferences fairly deducible therefrom. If an inference is a
reasonable one, the jury has the right to make the inference.'" Brown, 306 Kan. at 1157
(quoting State v. Rosa, 304 Kan. 429, Syl. ¶ 2, 371 P.3d 915 [2016]).


       Aggravated burglary is "without authority, entering into or remaining within any
. . . [d]welling in which there is a human being, with intent to commit a felony, theft, or
sexually motivated crime therein." K.S.A. 2017 Supp. 21-5807(b).
                                              12
        Theft is "with intent to permanently deprive the owner of the possession, use or
benefit of the owner's property or services . . . , [o]btaining or exerting unauthorized
control over property or services." K.S.A. 2017 Supp. 21-5801.


        First-degree murder, under the theories of premeditation and felony murder, is the
killing of a human being committed "[i]ntentionally, and with premeditation; or . . . in the
commission of, attempt to commit, or flight from any inherently dangerous felony."
K.S.A. 2017 Supp. 21-5402(a). Aggravated burglary is an inherently dangerous felony
under the statute. K.S.A. 2017 Supp. 21-5402(c)(1)(J).


        "A person is criminally responsible for a crime committed by another if such
person intentionally aids, abets, advises, hires, counsels or procures the other to commit
the crime." K.S.A. 21-3205(1).


        The district court instructed the jury on each of these crimes and on the theory of
aiding and abetting. The jury found Jenkins guilty of aggravated burglary for entering
Mack's apartment with the intent to commit a theft therein, aggravated burglary for
entering Friedman's apartment with the intent to commit a theft therein, theft of the
PlayStation 3, flat screen television, movies, and DVDs from Friedman's apartment, and
first-degree murder under theories of premeditation and felony murder for the death of
Mack.


        Jenkins does not argue that the State failed to show any one element of any of
these crimes; he simply makes a general assertion that the evidence was too weak to
support the convictions.



                                             13
       We disagree. At the very least, when viewed in a light most favorable to the State,
there was sufficient evidence to establish that Jenkins aided or abetted Parker and
Letourneau in committing the aggravated burglaries and theft, and that Parker shot and
killed Mack during the commission of the aggravated burglary in Mack's apartment.


       Through witness testimony, the jury heard that the day before Mack died, Jenkins
had been expressing worry about his financial situation and Bates told him that he could
steal money and drugs from an apartment in the Johnstown complex because the
occupants would be out of town. Johnson testified that he talked to Jenkins outside these
apartments at approximately 2:50 a.m. and, when Jenkins commented on an open door to
Friedman's apartment, Johnson told him that the people there had been partying and were
probably asleep.


       The evidence established that the crimes occurred shortly after 4:45 a.m. The State
introduced testimony that Kendra received a phone call from Jenkins between 4 and 5
a.m. to report that he was "sitting outside the place" and had to get off the phone because
he was "about to go handle what he had to handle and would call her back when he got
done." Williford testified that 15 to 20 minutes later, Jenkins called Kendra again and
said he had done what he was going to do and "got some miscellaneous objects" and told
Kendra to meet him back at the house because they "had to get rid of some things."
Williford testified that Jenkins also said that "[s]ome things got kicked off" but he "took
care of the situation."


       Various witnesses testified that Jenkins, Parker, and Letourneau were together
before and after the burglaries. Yanik-Ducharme testified that Parker and Letourneau had
a television and a PlayStation 3 on the morning on June 13, and Wellman later saw the
PlayStation 3 and some DVDs at the residence she shared with Parker. Officers found the


                                             14
PlayStation 3 when they searched Parker's residence and matched it to the serial number
on the PlayStation 3 missing from Friedman's apartment.


       Kendra told investigators that Jenkins tried to burn his work boots a few days after
Mack's death. At trial, when the State introduced a pair of boots that had a sole matching
the boot print on Mack's door, Kendra testified that the boots looked like Jenkins' work
boots. Police also found a .22 caliber shell casing at the scene of Mack's murder and in
the car where Letourneau was found after he had been shot. A forensic scientist testified
that those casings were fired from the same weapon. Parker admitted to killing
Letourneau, and officers found .22 caliber Super X shells in his residence.


       The jury also heard that Jenkins had threatened Kendra and her son on more than
one occasion, allegedly because of the information that Kendra knew about the events of
June 13, 2009.


       Based on this evidence, a reasonable jury could find that Jenkins learned
information about Mack's and Friedman's apartments, colluded with Parker, Letourneau,
and possibly Graham to burglarize the apartments and steal property from within, and
kicked in Mack's door to facilitate the burglary of his apartment. It was also reasonable
for the jury to find that Parker shot and killed Mack during that aggravated burglary. We
conclude that the evidence was sufficient to find Jenkins guilty of first-degree murder of
Mack, aggravated burglary of Mack's and Friedman's apartments, and theft.


Juror Misconduct


       Next, Jenkins asserts that a juror developed romantic feelings for the prosecutor
during the trial and those feelings swayed the juror's verdict, depriving Jenkins of his
Sixth Amendment right to a fair trial. Jenkins argues the district court abused its
                                             15
discretion when it found that juror misconduct did not occur and urges this court to find
that juror misconduct occurred, to conclude it deprived him of a fair trial, and to order a
new trial.


       When considering whether a new trial is warranted based on juror misconduct, the
trial court first considers whether juror misconduct created a fundamental failure in the
proceeding. State v. Corey, 304 Kan. 721, 730, 374 P.3d 654 (2016). If a fundamental
failure occurred, the trial court moves to the second step and considers whether the party
benefitting from the failure has shown the trial can continue without an injustice,
meaning the party has shown beyond a reasonable doubt that the failure did not affect the
outcome of the trial. Corey, 304 Kan. at 730-31 (citing State v. Ward, 292 Kan. 541, 565,
256 P.3d 801 [2011], cert. denied 565 U.S. 1221 [2012]).


       An appellate court reviews the trial court's decision in two parts. It reviews the
conclusion on whether a fundamental failure occurred for an abuse of discretion. Corey,
304 Kan. at 730. The trial court abuses its discretion if its decision


       "(1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken
       the view adopted by the trial court; (2) is based on an error of law, i.e., if the discretion is
       guided by an erroneous legal conclusion; or (3) is based on an error of fact, i.e., if
       substantial competent evidence does not support a factual finding on which a prerequisite
       conclusion of law or the exercise of discretion is based." Ward, 292 Kan. at 550.


       As for the second question—whether any failure resulted in injustice—an
appellate court does not review the district court's decision for abuse of discretion but
considers the entire record and performs its own constitutional harmless error review.
Corey, 304 Kan. at 731.



                                                     16
       The Sixth Amendment right to jury trial and the Fourteenth Amendment right to
due process guarantee criminal defendants the right to a fair and impartial jury. Morgan
v. Illinois, 504 U.S. 719, 727-28, 112 S. Ct. 2222, 119 L. Ed. 2d 492 (1992). Juror
misconduct can impair this right and result in a fundamental failure in the trial. See
Corey, 304 Kan. at 732-34 (concluding there was a fundamental failure in the trial when
a juror considered information outside the evidence).


       Generally, juror misconduct describes "communications with jurors from
outsiders, witnesses, bailiffs, or judges; and actions by jurors in the unauthorized viewing
of premises, or reading of newspaper articles." State v. Fenton, 228 Kan. 658, 664,
620 P.2d 813 (1980). The term also applies when a juror deceives the court about his or
her familiarity with other jurors, witnesses, the parties, or the facts of the case. See, e.g.,
State v. Jenkins, 269 Kan. 334, 338-39, 2 P.3d 769 (2000) (juror misconduct impaired
right to fair trial when juror failed to reveal her son had been murdered and that the
State's police witnesses helped prosecute son's murderer).


       Here, G.M. began sending the prosecutor letters, chocolates, and flowers
approximately nine months after the jury returned a verdict. The district court twice
considered whether this constituted juror misconduct and twice concluded that it did not.


       Jenkins argues that the district court abused its discretion both times because no
reasonable person would have agreed with its decision. We are not persuaded.


       At the hearings, the district judge heard testimony from the prosecutor and G.M.
The prosecutor testified she only knew G.M. because he served as a juror in this case.
She testified G.M. made no contact with her during the trial and only started to send her
letters and other items after seeing her in the hallway of the courthouse in September
2011. G.M. testified to the same. He also testified he had no feelings for the prosecutor
                                               17
during the trial, showed no bias in the State's favor, and relied on only the evidence to
come to a verdict.


       We conclude that the district court did not abuse its discretion when it found that
no juror misconduct had occurred. G.M. had no personal relationships with the other
jurors, the attorneys, or the defendant. The testimony revealed that G.M. did not contact
the prosecutor until well after the trial had ended, and that he based his verdict on the
evidence. A reasonable person could agree that G.M.'s actions did not constitute
misconduct.


       Because the district court did not abuse its discretion when it concluded that no
juror misconduct occurred, there was no fundamental failure in the trial and no need to
move to the second step of the analysis. Accordingly, Jenkins' challenge fails.



Retrospective Competency Hearing


       Finally, Jenkins argues the district court erred when it found that it could
retrospectively determine whether he was competent to stand trial.


       We review the district court's decision on the feasibility of a retrospective
competency hearing for an abuse of discretion. "A judicial decision amounts to an abuse
of discretion when a decision is (1) arbitrary, fanciful, or unreasonable, (2) based on an
error of law, (3) or based on an error of fact." State v. Ford, 302 Kan. 455, 473, 353 P.3d
1143 (2015).


       "'The Due Process Clause of the Fourteenth Amendment prohibits the criminal
prosecution of a defendant who is not competent to stand trial.'" Ford, 302 Kan. at 461

                                             18
(quoting Medina v. California, 505 U.S. 437, 439, 112 S. Ct. 2572, 120 L. Ed. 2d 353
[1992]). To prevent prosecution of incompetent defendants, K.S.A. 22-3302 requires that
the court suspend proceedings and hold a hearing on the defendant's competency "[i]f,
upon the request of either party . . . the judge before whom the case is pending finds that
there is reason to believe that the defendant is incompetent to stand trial."


       If the court fails to suspend the proceedings and conduct a competency hearing, a
retrospective hearing may rectify the error. Ford, 302 Kan. at 471-72. To determine
whether it is feasible to retrospectively determine the defendant's competency at the time
of the trial, the court considers the following four factors, called the McGregor factors:


       "'(1) [T]he passage of time, (2) the availability of contemporaneous medical evidence,
       including medical records and prior competency determinations, (3) any statements by
       the defendant in the trial record, and (4) the availability of individuals and trial witnesses,
       both experts and non-experts, who were in a position to interact with defendant before
       and during trial, including the trial judge, counsel for both the government and defendant,
       and jail officials. [Citation omitted.]'" Ford, 302 Kan. at 471 (quoting State v. Davis, 281
       Kan. 169, 181, 130 P.3d 69 [2006], overruled on other grounds by Ford, 302 Kan. 455).


       If the court determines a retrospective competency determination would not be
feasible, "the procedural violation compels reversal." Ford, 302 Kan. at 472.


       The district court here concluded that factors one, two, and four weighed in favor
of feasibility. It passed no judgment on factor three because the parties presented no
evidence on this factor. Based on its conclusions, the court ruled that a retrospective
competency hearing was feasible. We conclude that the district court acted within its
discretion.




                                                     19
         Factor 1: The passage of time

         When a great amount of time has passed since the defendant's trial, it is less likely
that a court can retrospectively determine whether the defendant was competent at the
time of the trial. McGregor v. Gibson, 248 F.3d 946, 963 (10th Cir. 2001).
Contemporaneous medical evidence, or the lack thereof—the focus of the second
factor—can shift this factor one way or the other. Ford, 302 Kan. at 473; State v. Murray,
302 Kan. 478, 485, 353 P.3d 1158 (2015). If this evidence is available, the passage of
time is not as detrimental. Ford, 302 Kan. at 473 (existence of contemporaneous
competency evaluation negated effect of 17 years that passed between trial and
retrospective competency determination). But in its absence, even the passage of a short
amount of time can signify that a retrospective decision is not feasible. Davis, 281 Kan. at
183 (concluding that three years between trial and retrospective competency
determination was significant when there was a complete lack of contemporaneous
medical evidence); see also McGregor, 248 F.3d at 963 (11 years between trial and
competency determination, coupled with lack of contemporaneous medical evidence,
weighed heavily against conclusion that the retrospective determination was feasible).


         This factor supports the district court's determination that the retrospective
competency determination was feasible. Approximately four years and seven months
passed between Jenkins' motion to determine competency and the district court's
competency hearing. This is less time than that which passed in McGregor and Ford.
And, as in Ford, the trial court here had the advantage of contemporaneous medical
evidence and testimony from people who interacted with Jenkins during and after the
trial.


         Jenkins disagrees. He argues that this factor does not support the district court's
conclusion because the length of time that passed between his trial and his competency

                                               20
hearing negatively affected Bantam-Cooper's memory. When testifying, Bantam-Cooper
reviewed a copy of the competency evaluation form she had completed when she
conducted the evaluation. Some questions were left unanswered, and, when prompted,
Bantam-Cooper could not remember if they were blank because she had not asked those
questions or for some other reason. Bantam-Cooper also could not remember if she had
completed another competency evaluation form or just the one submitted as evidence
during the hearing.


       We find Jenkins' argument unconvincing. The few details that Bantam-Cooper
was unable to recall did not prevent her from remembering most of what she learned
during her evaluation. And, even if those details hampered her testimony, the court had
the advantage of Bantam-Cooper's written evaluation and testimony from the other
witnesses. We agree with the district court's conclusion that this factor favors feasibility.


       Factor 2: Availability of contemporaneous medical evidence


       In Ford, the second factor weighed in favor of feasibility when there was a
contemporaneous competency evaluation that noted the defendant's psychiatric history
and detailed his ability to understand the proceedings and their consequences and assist in
his own defense. Ford, 302 Kan. at 473.


       In Murray, the availability of a doctor's contemporaneous competency
determination swayed this factor in favor of the State, even though the written
explanation was brief and the doctor did not clarify which test he used in conducting the
evaluation. 302 Kan. at 485-86. The defendant contended that the lack of certain details
in the competency determination and the doctor's failure to identify which test he used
rendered the medical evidence unhelpful. We disagreed, based on our observation that
there is no statutory requirement that an expert perform any evaluation. 302 Kan. at 486.
                                              21
       Again, we conclude that this factor supports the district court's ruling. The court
had a plethora of contemporaneous medical evaluation at its disposal. Bantam-Cooper, a
licensed psychotherapist, performed a competency evaluation when Jenkins first
requested a competency determination. At the competency hearing, the parties provided a
copy of the questionnaire Bantam-Cooper used and a letter that detailed her final
conclusion that Jenkins was competent to stand trial. The court also had the questionnaire
Bantam-Cooper used to evaluate Jenkins' risk of suicide with Bantam-Cooper's notes
about Jenkins' answers to the questions, a letter from Bantam-Cooper to the jail detailing
her final conclusions about Jenkins' risk of suicide, and the letter Jenkins wrote that
compelled the suicide watch. Finally, Bantam-Cooper was present to testify about her
evaluations.


       Jenkins insists that this factor weighs against feasibility because the written
questionnaire Bantam-Cooper used to conduct her competency evaluation was
incomplete. While Jenkins is correct that the form is incomplete, as we noted in Murray,
there was no statutory requirement that an expert perform any evaluation, let alone
perform it in a certain way.


       The district court here had at least as much contemporaneous medical evidence
before it as did the district courts in Ford and in Murray. For this reason, we conclude the
second factor weighs in support of the district court's conclusion.


       Factor 3: Availability of defendant's statements in trial record


       Because the parties presented no evidence regarding this factor, we do not include
it in our review.


                                             22
       Factor 4: Availability of witnesses


       The final factor strongly supports the district court's ruling. Six witnesses, all of
whom had interaction with Jenkins around the time of his trial, testified during the
hearing: the nurse at the jail where Jenkins was held, Jenkins' trial attorney, the
prosecutor, the judge who presided over Jenkins' trial, Bantam-Cooper, and an expert
psychologist. The testimony of Jenkins' trial counsel was especially helpful. As we noted
in Ford, "'[d]efense counsel is often in the best position to determine whether a
defendant's competency is questionable.'" 302 Kan. at 474 (quoting McGregor, 248 F.3d
at 960).


       Jenkins argues that the witness' testimony did not assist the court in making a
retrospective determination because the facts contradicted their assertions that Jenkins
was competent to stand trial. Essentially, Jenkins argues that the falsehood of the witness'
testimony makes a retrospective competency hearing unfeasible.


       We are not persuaded by Jenkins' argument. The veracity of a witness' testimony
is not the proper measure for considering whether this factor weighs for feasibility. The
proper measure is the availability of the testimony. Furthermore, Jenkins is making a
credibility argument, and it is not our role to assess the credibility of a witness. State v.
McReynolds, 288 Kan. 318, 326, 202 P.3d 658 (2009).


       The district court was able to hear testimony from multiple witnesses who
interacted with Jenkins before, during, and after his trial. As a result, this factor weighs
heavily in support of its conclusion that a retrospective determination was feasible.




                                              23
       Based on our review of the evidence presented, the district court did not abuse its
discretion when it concluded it could make a retrospective competency determination on
Jenkins' competency at the time of his trial.


       Affirmed.




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