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
2
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
¶ 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
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individual accused of a serious crime is an important governmental
¶ 8 Second, administering involuntary medication must
¶ 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
¶ 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
¶ 10 Fourth, administering the medication must be medically
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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.
