21CA1463 Peo in Interest of Rubit 11-24-2021
COLORADO COURT OF APPEALS
Court of Appeals No. 21CA1463
Pueblo County District Court No. 21MH87
Honorable Timothy O’Shea, Judge
The People of the State of Colorado,
Petitioner-Appellee,
In the Interest of Preston D. Rubit,
Respondent-Appellant.
ORDER AFFIRMED
Division VI
Opinion by JUDGE WELLING
Fox and Johnson, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced November 24, 2021
Cynthia Mitchell, County Attorney, Kate H. Shafer, Special Assistant County
Attorney, Pueblo, Colorado, for Petitioner-Appellee
Nathan Law, P.C., Mary E. Nathan, Fountain, Colorado, for Respondent-
Appellant
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¶ 1 Respondent, Preston D. Rubit, appeals the trial court’s order
authorizing the involuntary administration of two medications. We
affirm.
I. Background
¶ 2 After being found incompetent to proceed in two criminal
cases, Rubit was committed to the Colorado Mental Health Institute
at Pueblo (CMHIP). On August 24, 2021, the People petitioned the
trial court to authorize the involuntary administration of medication
to treat Rubit’s mental illness. Specifically, the People sought
authorization to administer two antipsychotic medications —
namely, Zyprexa/Olanzapine and Abilify — and corresponding lab
work to monitor the efficacy and side effects of the medications.
¶ 3 The trial court held an evidentiary hearing at which Rubit and
his treating psychiatrist, Dr. Lennart Abel, testified. Dr. Abel
testified that Rubit suffered from psychosis not otherwise specified,
which is expressed in delusional beliefs. Dr. Abel opined that Rubit
does not have any insight into his mental illness and that he needs
medication to treat his mental illness. He also testified that he has
been effectively treating Rubit by administering Abilify pursuant to
a previous court order, and that Rubit could take Zyprexa but
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chooses Abilify to avoid problems with effectively managing his
diabetes.
¶ 4 Dr. Abel testified that he intends to continue to treat Rubit
with Abilify orally and to eventually also administer a monthly
intramuscular injection of Abilify. Dr. Abel stated that Rubit needs
to have the Zyprexa as a backup in the event Rubit refuses an oral
dose of Abilify, which would then allow the healthcare providers to
administer an intramuscular dose of Zyprexa.
¶ 5 After the hearing, the court found the following facts were
proved by clear and convincing evidence:
• Without the medications requested, it’s unlikely that
Rubit will be restored to competency and the State will
not be able to resolve the criminal charges against him.
• The medications requested are unlikely to have side
effects that will interfere significantly with Rubit’s ability
to assist his counsel in conducting a trial defense.
• The medications requested will not cause Rubit’s trial to
be unfair.
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• The administration of the medications involuntarily is
necessary to further the interests of the State in resolving
Rubit’s criminal charges.
• There is no less intrusive treatment that will allow Rubit
to be restored to competency.
• The medications requested are medically appropriate.
Based on these findings, the court granted the People’s petition and
entered an order authorizing the involuntary administration of the
two requested medications.
¶ 6 Rubit appeals, arguing that the People didn’t present sufficient
evidence to support the court’s order.
II. Analysis
A. Standard of Review
¶ 7 We must determine whether the evidence, when viewed as a
whole and in the light most favorable to the prevailing party, is
sufficient to support the order. People in Interest of R.K.L., 2016
COA 84, ¶ 13. We review the trial court’s legal conclusions de novo,
but we defer to the court’s findings of fact if record evidence
supports them. People in Interest of Strodtman, 293 P.3d 123, 131
(Colo. App. 2011). “[T]he credibility of witnesses, the sufficiency,
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probative effect and weight of the evidence, and the inferences and
conclusions to be drawn therefrom are all within the province of the
trial court . . . .” People in Interest of C.A.K., 652 P.2d 603, 613
(Colo. 1982). Testimony from a treating physician can be sufficient
to support the trial court’s findings in an involuntary medication
order. People v. Pflugbeil, 834 P.2d 843, 847 (Colo. App. 1992).
B. The Law of Competency Restoration
¶ 8 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
¶ 9 “First, a court must find that important governmental
interests are at stake. The Government’s interest in bringing to trial
an individual accused of a serious crime is important.” Sell, 539
U.S. at 180.
¶ 10 Second, involuntary medication must significantly further
those interests. Id. at 181. This means that “administration of the
drugs is substantially likely to render the defendant competent to
stand trial” and “is substantially unlikely to have side effects that
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will interfere significantly with the defendant’s ability to assist
counsel in conducting a trial defense, thereby rendering the trial
unfair.” Id.
¶ 11 Third, the medication must be necessary to further those
interests. That is, “[t]he court must find that any alternative, less
intrusive treatments are unlikely to achieve substantially the same
results.” Id. Under this element, “the court must consider less
intrusive means for administering the drugs,” such as “a court
order to the defendant backed by the contempt power.” Id.
¶ 12 Fourth, the medication must be “medically appropriate, i.e., in
the patient’s best medical interest in light of his medical condition.”
¶ 13 The state must prove each element by clear and convincing
evidence. R.F., ¶ 16.
C. Sufficient Evidence Supported the Court’s Findings
¶ 14 Rubit argues that Sell’s second, third, and fourth elements
were not proved by sufficient evidence. We disagree.
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1. Element Two: Involuntary Medication Must Significantly
Further Important Governmental Interests
¶ 15 With respect to the second element, the court found that
“without the medications request[ed], it is unlikely [Rubit will] be
restored to competency and the People of the State of Colorado will
not be able to resolve the criminal charges pending against him.”
The court observed that the medications “are unlikely to have side
effects that will interfere significantly with [Rubit’s] ability to assist
counsel at trial.”
¶ 16 Dr. Abel’s affidavit and testimony support these findings. He
stated in his affidavit that Zyprexa and Abilify are “likely to render
[Rubit] competent” and “the medications are unlikely to have side
effects that will interfere significantly with [Rubit’s] ability to assist
counsel in his criminal case.” Dr. Abel testified that while on
Abilify, Rubit is “logical and coherent,” and that when Rubit had
taken Zyprexa before, he became competent to proceed.
¶ 17 Rubit gained 110 pounds the last time he was on Zyprexa, and
he argues that the risk of further weight gain, heart disease,
worsened diabetes, and possibly death loom large and have the
potential to make him too ill to assist his counsel. Dr. Abel,
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however, testified that “[Rubit] has diabetes, but his diabetes has
been managed with Abilify,” and that when Rubit was on Zyprexa
and had his blood levels checked “they [were] reasonable.” Based
on Dr. Abel’s testimony, the trial court’s finding that the
medications are unlikely to have side effects that will interfere
significantly with Rubit’s ability to assist counsel in his criminal
case is adequately supported by the record.
2. Element Three: Any Alternative, Less Intrusive Treatments are
Unlikely to Achieve Substantially the Same Results
¶ 18 With respect to the third element, the trial court found that
the medications were necessary. Dr. Abel’s testimony supports this
finding. He stated that Rubit “would like to have therapy, but
therapy alone will not treat the formal thought disorder.”
¶ 19 Rubit argues that the court should have considered Abilify on
its own (without Zyprexa as a backup) as the less intrusive method.
Rubit argues that he has taken and will continue to take Abilify
voluntarily, even without a court order in place. Additionally, Rubit
argues that the “just-in-case” rationale for ordering Zyprexa as a
backup is fatal to the third Sell element. We disagree.
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¶ 20 The record supports the court’s rejection of this alternative.
This is not the first order to involuntarily medicate Rubit. Prior to a
court entering an earlier involuntary medication order (which is
now expired), Rubit was refusing both Zyprexa and Abilify.
Additionally, Dr. Abel has attempted to explain the benefits and
side effects of each medication to Rubit, but Rubit has refused to
talk with him. Instead, according to Dr. Abel, Rubit has “talked
with his nurse practitioner, and he has indicated to his nurse
practitioner that he takes the Abilify voluntarily, but he would not
continue to take it if there was not a court order forcing him to take
Zyprexa if he refused to take [Abilify].”
¶ 21 Dr. Abel’s testimony indicates that Rubit won’t continue to
take Abilify unless Zyprexa is ordered as a backup in the event that
Rubit refuses his Abilify. Based on these circumstances, the trial
court didn’t err by rejecting the Abilify-only alternative because it
was not a viable less intrusive means for medicating Rubit. See
Sell, 539 U.S. at 181.
3. Element Four: The Medication Must Be Medically Appropriate
¶ 22 With respect to the fourth element, the trial court found that
the medications “are medically appropriate for the treatment of
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[Rubit’s] mental disorder.” Dr. Abel testified that Rubit has
unspecified psychosis and that the requested medications would
likely treat his condition and restore his competency. This supports
the trial court’s conclusion that the medications are medically
appropriate and that the medications are in Rubit’s best interest.
¶ 23 The court observed that Rubit has diabetes and that Zyprexa
could cause weight gain, but the court relied on Dr. Abel’s
testimony that the CMHIP healthcare providers would monitor
Rubit’s condition through close observation and blood work. Dr.
Abel testified further that if Rubit’s diabetes worsened, his treating
doctors would add additional medication to treat his diabetes. Dr.
Abel maintained that the medications were medically appropriate
even considering Rubit’s diabetes.
¶ 24 Therefore, we reject Rubit’s contention that the trial court
erred by finding that the medications are medically appropriate.
III. Conclusion
¶ 25 The order is affirmed.
JUDGE FOX and JUDGE JOHNSON concur.