Peo in Interest of Fairchild

24CA0829 Peo in Interest of Fairchild 07-18-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0829

Pueblo County District Court No. 24MH30018

Honorable Timothy O’Shea, Judge

The People of the State of Colorado,

Petitioner-Appellee,

In the Interest of Kenneth Gabriel Fairchild,

Respondent-Appellant.

ORDER AFFIRMED

Division III

Opinion by JUDGE MOULTRIE

Dunn and Yun, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced July 18, 2024

Cynthia Mitchell, County Attorney, Kate H. Shafer, Special Assistant County

Attorney, Pueblo, Colorado, for Petitioner-Appellee

Tezak Law, P.C., Mary E. Tezak, Florence, Colorado, for Respondent-Appellant

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¶ 1 Respondent, Kenneth Gabriel Fairchild, appeals the district

court’s order authorizing the involuntary administration of

antipsychotic and mood stabilizing medications for the purpose of

restoring him to competency to stand trial. We affirm.

I. Background

¶ 2 Fairchild was charged with multiple felonies and

misdemeanors (in two separate cases) and found incompetent to

stand trial. He was ordered to undergo competency restoration and

received approximately one year of outpatient competency

restoration treatment before he was admitted to the Colorado

Mental Health Hospital in Pueblo (CMHHIP) for inpatient

competency restoration treatment. During his court-ordered

treatment, Fairchild consistently refused to take antipsychotic

medication.

¶ 3 At CMHHIP, Fairchild was diagnosed with schizoaffective

disorder, which causes him to have delusional beliefs, poor insight

into the symptoms of his psychiatric illness, and ongoing auditory

hallucinations. About eight months after his admission to

CMHHIP, the People petitioned the district court to authorize

involuntary administration of antipsychotic and mood stabilizing

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medications to restore Fairchild to competency. After a hearing, the

district court held that the People had satisfied all four factors

required by Sell v. United States, 539 U.S. 166 (2003), for the

involuntary administration of medication to restore an individual’s

competency. The court therefore granted the petition and

authorized the involuntary administration of the requested

medications to restore Fairchild to competency.

II. Sufficiency of the Evidence

¶ 4 Fairchild asserts that the evidence presented at the hearing

was insufficient to support the involuntary medication order. While

he concedes that sufficient evidence supports the first and fourth

factors set forth in Sell, he asserts that insufficient evidence

established the second and third factors. We disagree.

A. Standard of Review

¶ 5 There is a split of authority in our court concerning the

appropriate standard of review for the Sell factors. Compare People

in Interest of Hardesty, 2014 COA 138, ¶¶ 15-17 (identifying eight

Sell factors and applying a mixed question review to the first factor,

de novo review to the second factor, and clear error review to the

remaining six factors), with People in Interest of R.F., 2019 COA

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110, ¶ 21 (identifying four Sell factors and applying de novo review

to the first factor and clear error review for the remaining three

factors); see also People in Interest of Joergensen, 2022 COA 126,

¶¶ 11-12 (noting that there are “four [Sell] elements” and stating

that “the resolution of a Sell motion presents a mixed question of

fact and law.”). We agree with the division’s reasoning in Interest of

R.F. and review the district court’s factual findings concerning the

second and third Sell factors for clear error. “Clear error” review

means we won’t disturb a court’s factual findings if there is any

evidence in the record to support them. Woodbridge Condo. Ass’n,

Inc. v. Lo Viento Blanco, LLC, 2020 COA 34, ¶ 24.

B. Applicable Law

¶ 6 The United States Supreme Court has established a four-part

test for determining when a state may involuntarily administer

antipsychotic medication to restore a defendant’s competency in a

criminal proceeding. See Sell, 539 U.S. at 180-81; see also R.F.,

¶ 21. At a Sell hearing, the People bear the burden of proving each

of the four elements by clear and convincing evidence. R.F., ¶ 16.

¶ 7 First, there must be important governmental interests at

stake. Sell, 539 U.S. at 180; R.F., ¶ 12. Bringing to trial an

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individual accused of a serious crime is an important governmental

interest. Sell, 539 U.S. at 180; R.F., ¶ 12.

¶ 8 Second, administering involuntary medication must

significantly further those interests. Sell, 539 U.S. at 181; R.F.,

¶ 13. The state satisfies this factor by showing that (1)

administering the medication is substantially likely to restore the

defendant’s competency and (2) the medication is substantially

unlikely to have side effects that will interfere with the defendant’s

ability to assist in the defense. Sell, 539 U.S. at 181; R.F., ¶ 13.

¶ 9 Third, the medication must be necessary to further the

government’s interests. Sell, 539 U.S. at 181; R.F., ¶ 14. The state

satisfies this factor by showing that (1) any less intrusive treatment

alternatives are unlikely to achieve substantially the same results

and (2) less intrusive means for administering the medication were

considered. Sell, 539 U.S. at 181; R.F., ¶ 14.

¶ 10 Fourth, administering the medication must be medically

appropriate. Sell, 539 U.S. at 181; R.F., ¶ 15.

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C. Second Sell Factor: Involuntary Medication Will Significantly

Further Important Governmental Interests

¶ 11 Fairchild asserts that there was insufficient evidence to

establish that the involuntary administration of the requested

medications would significantly further the State’s interest in

prosecuting him. In particular, he contests the district court’s

finding that the administration of the requested medications is

substantially likely to render him competent to stand trial. We

disagree.

¶ 12 Fairchild argues that while the psychiatrist testified that the

requested medications would render him competent to stand trial,

the psychiatrist did not elaborate how the proposed treatment was

tailored to address his “unique” presentation.

¶ 13 True, the psychiatrist testified that “Fairchild’s presentation is

unique in that he has [] prominent delusions regarding individuals

monitoring him, or tracking him, and antagonizing him in various

ways,” and that primary delusional disorders “are seen as more

difficult to treat.” But because Fairchild displayed other symptoms

— including repeated auditory hallucinations, which, the

psychiatrist testified are not typically seen in a primary delusional

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disorder and are “easily treated with antipsychotic medications” —

he opined that Fairchild would be responsive to the proposed

treatment. Moreover, when asked whether the medications would

treat Fairchild’s delusions, the psychiatrist testified that they

would. He testified that Invega and Zyprexa would “improve

symptoms that [Fairchild] experiences including underlying

delusions and paranoia and ongoing auditory and tactile

hallucinations” and that Depakote, which is a mood-stabilizing

medication, would improve Fairchild’s “symptoms of underlying

mania or hypo-mania.” And he opined that “given the quality of [his

symptoms],” Fairchild “requires treatment with antipsychotic and

mood-stabilizing medication.”

¶ 14 We are not persuaded otherwise by the suggestion that an MRI

could reveal an undiscovered alternative explanation for Fairchild’s

symptoms, which would undermine the likelihood that the proposed

medications would render Fairchild competent to stand trial. The

psychiatrist testified that although an MRI could be done in the

future to rule out neurological disorders, because of the late onset

of Fairchild’s symptoms, he did not think an MRI was a priority

because it would not “show anything that’s treatable.” Rather,

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“based off [Fairchild’s] presentation and his history, the symptoms

he’s displaying [are] primarily psychiatric in nature.”

¶ 15 Because there is factual support in the record for the district

court’s findings, those findings are not clearly erroneous.

Accordingly, we conclude that the People met their burden to

establish by clear and convincing evidence that the requested

medications were substantially likely to render Fairchild competent

to stand trial, thereby significantly furthering the important

governmental interest at stake.

D. Third Sell Factor: Involuntary Medication is Necessary to

Further Important Governmental Interests

¶ 16 Fairchild also asserts that there was insufficient evidence to

support the third Sell factor. Again, we disagree.

¶ 17 Fairchild argues that a less intrusive treatment alternative

exists in “simply using Invega, with Zyprexa as a backup, and

omitting Depakote from the treatment plan.” He reasons that

because the symptoms targeted by Depakote are “not symptoms

that have historically contributed to [his] failed competency

evaluations,” Depakote is not necessary to further the government’s

interests.

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¶ 18 We disagree that the symptoms targeted by Depakote are not

symptoms that have contributed to Fairchild’s failed competency

evaluations.

¶ 19 Fairchild testified that he had four competency evaluations

since arriving at the hospital. The psychiatrist opined that all the

recommended medications were necessary to render Fairchild

competent to stand trial. The psychiatrist testified that Invega (and

Zyprexa as a backup) would address Fairchild’s underlying

delusions and paranoia — symptoms the psychiatrist pointed to

that “affect [Fairchild’s] ability to effectively participate and work

with his attorneys” — that Depakote would “improve symptoms of

underlying mania or hypo-mania that have been described in the

nursing record throughout [Fairchild’s] stay at this hospitalization.”

Moreover, the psychiatrist testified that at times Fairchild becomes

“irritable” and “very angry” “because of [his] hallucinations.” And

the psychiatrist testified that Depakote would improve Fairchild’s

symptoms of “irritability, high energy, decreased need for sleep, and

rapid and pressured speech.” Finally, the psychiatrist opined that

he did not believe there was an alternative method of treating

Fairchild that would be both effective and less intrusive than the

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requested medications; rather, he testified that “[g]iven the quality

of [Fairchild’s] symptoms . . . [Fairchild] requires treatment with an

antipsychotic medication and a mood-stabilizing medication.”

¶ 20 Based on this testimony, the district court found that the

proposed medications were necessary to further the important

governmental interests at stake and any alternative, less intrusive

treatments were unlikely to achieve substantially the same results.

Because the record supports the court’s finding as to this factor, it

was not clearly erroneous.

¶ 21 Accordingly, because we conclude that the People have met

their burden to prove the second and third Sell factor, we affirm the

district court’s order.

III. Disposition

¶ 22 The order is affirmed.

JUDGE DUNN and JUDGE YUN concur.