People v. Magee - Judgment Affirmed by Division II

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April 9, 2026 Get Citation Alerts Download PDF Add Note

Peo v. Magee

Colorado Court of Appeals

• Citations: None known
• Docket Number: 23CA1160

• Precedential Status: Non-Precedential

• Opinion

• Authorities (15)

• Cited By (0)

• Summaries (0)

• Similar Cases (14.6K)

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Combined Opinion

23CA1160 Peo v Magee 04-09-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1160
City and County of Denver District Court No. 20CR2842
Honorable Eric M. Johnson, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

George Albert Magee,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division II
Opinion by JUDGE SULLIVAN
Fox and Kuhn, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced April 9, 2026

Philip J. Weiser, Attorney General, Allison S. Block, Assistant Attorney General,
Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Joseph Paul Hough, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, George Albert Magee, appeals the judgment of

conviction entered on a jury verdict finding him guilty of attempted

first degree murder, attempted second degree murder, and two

counts of first degree assault. We affirm.

I. Background

¶2 In May 2020, Magee became embroiled in an altercation with

three of his neighbors. He shot and killed one neighbor, B.W., and

shot and injured B.W.’s common law wife, M.H. He also allegedly

hit B.W.’s daughter, Q.W. Magee then fled the scene and hid under

a ramp next to a warehouse, where police eventually found him.

¶3 As relevant to this appeal, the prosecution charged Magee with

two counts of first degree murder (after deliberation and extreme

indifference) for killing B.W., two counts of attempted first degree

murder (after deliberation and extreme indifference) for shooting

M.H., two counts of first degree assault of M.H., and one count of

second degree assault of Q.W.1

1 The prosecution also charged Magee with four counts of

possession of a weapon by a previous offender, four crime of
violence sentence enhancers, and three habitual criminal counts.
Those charges, which the court bifurcated, aren’t relevant to this
appeal.

1
¶4 At trial, Magee didn’t dispute that he shot B.W. and M.H. but

argued that he acted in self-defense.

¶5 The jury found Magee guilty of several charges related to M.H.,

including attempted first degree murder (extreme indifference), the

lesser included charge of attempted second degree murder (after

deliberation), and two counts of first degree assault. But it found

Magee not guilty of second degree assault of Q.W., and it hung on

the two counts of first degree murder for killing B.W.

¶6 The trial court entered judgment and adjudicated Magee a

habitual criminal under section 18-1.3-801(2.5), C.R.S. 2025. It

sentenced Magee to life in prison with a possibility of parole after

forty years.

II. Discussion

¶7 Magee contends that the trial court erred by admitting

improper other act and character evidence. Specifically, he argues

that the court shouldn’t have admitted unredacted interview

statements in which Magee discussed his felon status. He also

argues that the court shouldn’t have admitted testimony about

B.W.’s character for peacefulness. We address and reject each

contention in turn.

2
A. Applicable Law and Standard of Review

¶8 Other act evidence, including “[e]vidence of any other crime,

wrong, or act is not admissible to prove a person’s character in

order to show that on a particular occasion the person acted in

conformity with the character.” CRE 404(b)(1). But such “evidence

may be admissible for another purpose, such as proving motive,

opportunity, intent, preparation, plan, knowledge, identity, absence

of mistake, or lack of accident.” CRE 404(b)(2). Rule 404(b) applies

only to extrinsic acts, and not to intrinsic acts that “directly prove

the charged offense [or] occur contemporaneously with the charged

offense and facilitate the commission of it.” Rojas v. People, 2022

CO 8, ¶ 44.

¶9 To determine whether extrinsic other act evidence is

admissible, courts apply the four-part Spoto test, analyzing whether

(1) the evidence relates to a material fact; (2) the evidence is

logically relevant; (3) that logical relevance is independent of the

impermissible propensity inference; and (4) the evidence’s probative

value is substantially outweighed by the danger of unfair prejudice

under CRE 403. People v. Spoto, 795 P.2d 1314, 1318 (Colo. 1990);

see Rojas, ¶ 52.

3
¶ 10 Evidence satisfies the first prong if it can be used to prove

either of two types of material facts: “(1) actual elements of the

charged offense, also called ultimate facts[;] or (2) intermediate

facts, themselves probative of ultimate facts.” Yusem v. People, 210

P.3d 458, 464 (Colo. 2009). It satisfies the second prong if it “has

any tendency to make the existence of the material fact more or less

probable than without the evidence.” Id. at 464-65; see CRE 401.

¶ 11 Under the third prong, other act evidence is inadmissible if the

evidence’s logical relevance depends on an inference that the person

who committed the other act has a bad character and is therefore

more likely to have committed the crime at issue. See id. at 466.

¶ 12 Finally, under the fourth prong, “evidence may be excluded if

its probative value is substantially outweighed by the danger of

unfair prejudice.” CRE 403; see Yusem, 210 P.3d at 467. Evidence

is unfairly prejudicial if it invites the jury to decide the case on an

improper basis, such as sympathy, hatred, contempt, retribution,

or horror. People v. Allgier, 2018 COA 122, ¶ 31.

¶ 13 To determine whether evidence should be excluded under

Rule 403, courts consider multiple factors, including (1) the

importance of the fact the evidence seeks to prove; (2) the strength

4
and length of the chain of inferences necessary to prove that fact;

(3) whether the fact is disputed; (4) the availability of alternative

means of proof; and (5) the potential effectiveness of a limiting

instruction. Yusem, 210 P.3d at 467-68 (citing Vialpando v. People,

727 P.2d 1090, 1096 (Colo. 1986)). In reviewing the trial court’s

decision, we afford the evidence its maximum probative value and

its minimum unfair prejudice. Id. at 467.

¶ 14 Similar to other act evidence, “[e]vidence of a person’s

character or a trait of that person’s character is not admissible for

the purpose of proving that the person acted in conformity

therewith on a particular occasion.” CRE 404(a). In a homicide

case, however, the prosecution may offer “evidence of a character

trait of peacefulness of the alleged victim . . . to rebut evidence that

the alleged victim was the first aggressor.” CRE 404(a)(2); see

People v. Baca, 852 P.2d 1302, 1308 (Colo. App. 1992).

¶ 15 We review a trial court’s decision to admit evidence, including

character evidence and other act evidence, for an abuse of

discretion. See People v. Trujillo, 2015 COA 22, ¶ 8; Yusem, 210

P.3d at 463. A court abuses its discretion when its decision is

5
manifestly arbitrary, unreasonable, or unfair, or if it misapplies the

law. People v. Feldman, 2024 COA 119, ¶ 28.

B. Unredacted Video

¶ 16 Magee first contends that the trial court erred by admitting an

unredacted video interview. Specifically, Magee argues that

statements he made in a recorded interview regarding his criminal

history constitute inadmissible other act evidence that the court

should have excluded or redacted.2 We disagree.

1. Additional Background

¶ 17 After the police arrested Magee, a detective interviewed Magee

at a police station. In that video-recorded interview, the detective

talked with Magee for about fifteen minutes then left the room.

Magee then spoke aloud, with no one else in the room, for about

nine minutes. As relevant here, Magee said

But George, you shot him? Yeah! That’s why
you get a gun for. But you’re a big guy? Yeah!
And? I’m a big old guy with health issues like
a mother fucker. My ankle’s fucked up, I can’t

2 The People argue that Magee invited any error as to the

statements being admitted without redactions, or that he waived
this issue. Because we conclude the trial court didn’t err by
admitting the statements in their entirety, we will assume, for the
purposes of our analysis only, that Magee preserved this issue.
See, e.g., People v. Casper, 2025 COA 69, ¶ 48.

6
fight like I used to fight. Man, and I ain’t got
no reason for me to fight like I used to fight.
I’m fifty mother fucking years old, these young
mother fuckers want to fight, I’m shootin’ man.
I’m a three-time mother fucking felon. I could
punch somebody in the fucking face and break
they nose and get life. So if it’s worth fighting
for it’s worth killing for. That’s how I figure.

Don’t nobody know my position but me. I’m a
three-time violent offender. So if I fight dude
and just break his mother fucking nose that
means I’m gone forever. So what, why, what,
why should I risk myself fighting somebody?
I’m going to get just as much time killing
somebody, shooting somebody protecting
myself. It ain’t like I went over there and
started shooting mother fuckers. Mother
fuckers was punching on me, man.

The detective eventually returned and ended the interview after

questioning Magee for another few minutes.

¶ 18 Before trial, the prosecution filed a notice of intent to

introduce bad acts evidence, including Magee’s discussion of his

status as a three-time felon during the recorded interview. At a

pretrial hearing, the prosecution clarified that it sought to introduce

the full video interview, including the entirety of Magee’s soliloquy.

Defense counsel objected and argued that Magee’s statements

about his felon status constituted improper propensity evidence.

The court disagreed with defense counsel, reasoning that Magee’s

7
statements went “directly” to his intent, deliberation, and claim of

self-defense. The court therefore found that the statements were

relevant independent of any character or propensity inference. The

court noted that it would allow the prosecution to play the entire

soliloquy “unless the defense wants it edited.” It added that “if the

defense requests, we will craft a limiting instruction.”

¶ 19 At trial, the prosecution said it intended to play the entire

soliloquy but redact other inadmissible portions of the interview.

Defense counsel objected to any redactions, arguing they had relied

on the court’s earlier ruling that the entire video would be played.

¶ 20 The court clarified that it had ruled only that Magee’s soliloquy

statements about his felon status were admissible under

Rule 404(b), and that it hadn’t foreclosed arguments that other

portions of the video should be excluded for other reasons.

Ultimately, the court told the prosecution that it could redact a

limited portion of the video during which Magee was speaking with

the detective. The court also told defense counsel, however, that

the defense could play the video in its entirety if they wished.

8
¶ 21 The prosecution introduced the redacted video, although the

soliloquy itself wasn’t redacted. Before playing the video, the court

read the following limiting instruction to the jury:

So I’m specifically ordering you not to consider
any statements about past record for
propensity purposes. That is, anything he
says he did in the past does not make it more
or less likely he did what he’s accused of today
in this trial.

I’m allowing the statement in and allowing the
statements to be presented for a limited
purpose. And that purpose is this and only
this[:] Mr. Magee’s state of mind during the
events in question.

So I’m admitting it for that purpose only. And
you may consider his statements as to his past
only . . . as it affects or gives you insight into
what was in his head, his state of mind, at the
time of these events.

¶ 22 The next day, Magee introduced the unredacted video

recording into evidence. Before playing the video, the court

reminded the jury that it could consider Magee’s statements about

his criminal history only for the purpose of understanding Magee’s

state of mind.

1. Analysis

¶ 23 We conclude that Magee’s soliloquy — including his two

statements about being a “three-time” felon or offender — satisfied

9
the Spoto test. The trial court therefore didn’t abuse its discretion

by admitting the video recording without redacting those

statements.

¶ 24 The statements satisfied the first two Spoto prongs because

they were relevant to the material fact of Magee’s mental state. See

Yusem, 210 P.3d at 464-65. By revealing Magee’s thought process

underlying his choice to shoot his gun rather than use lesser force,

the statements tended to prove that Magee acted after deliberation

and with the intent to cause the death of another, both elements of

first degree murder under section 18-3-102(1)(a), C.R.S. 2025. The

statements similarly tended to show that Magee acted under

circumstances manifesting extreme indifference to the value of

human life, and that he knowingly engaged in conduct that created

a grave risk of death to a person. These are elements of first degree

murder under section 18-3-102(1)(d) and first degree assault under

section 18-3-202(1)(c), C.R.S. 2025 — both charges Magee faced.

Last, the statements about his “three-time” offender status tended

to disprove a required element of Magee’s self-defense claim — that

he used only that degree of force which he reasonably believed to be

necessary to defend himself. See § 18-1-704(1), (2), C.R.S. 2025.

10
¶ 25 The statements also satisfied Spoto’s third prong because their

relevance wasn’t dependent on any prohibited propensity inference.

True, Magee’s references to his status as a three-time felon may

have raised the inference that Magee has bad character and must

have committed the crimes in question. But the statements’

relevance wasn’t dependent on that prohibited inference. To the

contrary, they also provided insight into Magee’s state of mind,

offered an explanation for why he shot his neighbors rather than

use lesser force, and tended to prove elements of the charged

offenses while simultaneously disproving his claim of self-defense.

See People v. Cousins, 181 P.3d 365, 372 (Colo. App. 2007) (other

act evidence created acceptable inference that the defendant had a

motive to commit the charged offense); see also People v. Lancaster,

2022 COA 82, ¶ 47 (explaining that even if the other act evidence

injects “some bad character evidence into the trial, the crucial

question is whether a jury could reasonably consider that evidence

for a proper purpose, independent of this bad character inference”).

¶ 26 Finally, under Spoto’s fourth prong and the Yusem factors, we

conclude the trial court acted within its discretion by finding that

11
the danger of unfair prejudice didn’t substantially outweigh the

statements’ probative value.

¶ 27 As to probative value, the statements were highly probative

because they gave direct insight into Magee’s state of mind and

intent, elements of both the charged offenses and Magee’s self-

defense claim. See Vialpando, 727 P.2d at 1096 (evidence that bore

on essential elements was important and admissible); People v.

Villa, 240 P.3d 343, 352 (Colo. App. 2009) (upholding admission of

other act evidence that was “highly probative of [the] defendant’s

intent”). And the chain of inferences necessary to determine

Magee’s state of mind was short because he explicitly relayed what

he was thinking and why he shot his neighbors rather than use less

lethal force. As the trial court aptly put it, there was “a single link

to this chain” because the soliloquy showed “actually what was

going on in his head.” Moreover, whether Magee met the mens rea

elements of the charged crimes was disputed. See Yusem, 210 P.3d

at 468. And by claiming self-defense, he put the elements of that

defense at issue, including the reasonableness of his belief that

lesser force would have proved inadequate.

12
¶ 28 We also discern no available alternative to prove Magee’s state

of mind that would have been comparably probative. Magee chose

not to testify at trial. See U.S. Const. amend. V (“No person shall

be . . . compelled in any criminal case to be a witness against

himself . . . .”). And contrary to Magee’s argument, redacting the

“three-time” offender statements would have eliminated important

context for the jury by removing the core reason that Magee felt

justified in shooting his gun rather than using lesser force.

¶ 29 Turning to the danger of unfair prejudice, we conclude that

the trial court acted within its discretion by finding that the

statements didn’t invite the jury to decide the case on an improper

basis. In his soliloquy, Magee didn’t discuss any details of his prior

convictions. See People v. Underwood, 53 P.3d 765, 771 (Colo. App.

2002) (other act evidence wasn’t unduly prejudicial when it wasn’t

described in great detail). And while his references to his felon

status may have injected some prejudice, those statements were

likely less inflammatory than the evidence presented to the jury

regarding Magee shooting B.W. and M.H. See People v. Rath, 44

P.3d 1033, 1043 (Colo. 2002) (other acts were less serious than the

13
sexual assaults presented to the jury and were therefore “less likely

to have an inflammatory effect”).

¶ 30 Finally, the court properly instructed the jury not to consider

the statements for any propensity purpose. See People v. Kembel,

2023 CO 5, ¶ 50 (instruction about the limited use of other act

evidence can effectively reduce the risk of prejudice, and we

presume the jury follows instructions).

¶ 31 Accordingly, because Magee’s statements satisfied Spoto’s four

prongs, we conclude the trial court didn’t abuse its discretion by

admitting the unredacted statements.3

C. B.W.’s Peacefulness

¶ 32 Magee also contends that the trial court erred by admitting

evidence of B.W.’s character for peacefulness. Again, we disagree.

1. Additional Background

¶ 33 During opening statements, defense counsel declared, “[T]his

is a self-defense case.” Counsel argued that Magee had found

himself “in the middle of a dangerous and volatile situation with

3 Because we conclude that Magee’s statements were admissible as

extrinsic evidence, we don’t address the People’s contention that
they were also admissible as intrinsic evidence. See Rojas v. People,
2022 CO 8, ¶ 52.

14
multiple parties, multiple family members,” and that he acted “to

defend himself from the threat that was issued against him.”

Counsel then concluded his opening statement by imploring the

jury to find that “Magee was acting in self-defense and[,] because of

that, [to] find he is not guilty.”

¶ 34 The prosecution called M.H. as a witness during its case-in-

chief. During defense counsel’s cross-examination, M.H. testified

that she saw Magee push Q.W. According to M.H., B.W. then came

outside and told Magee not to touch his daughter. B.W. then

swung at Magee, prompting Magee to shoot his gun. Upon further

questioning, M.H. confirmed that Magee pulled out his gun after

B.W. started swinging at him.

¶ 35 Later, the prosecution called Q.W. as a witness. Q.W. testified

that she saw B.W. hit Magee “[o]ne or two times.” Magee then shot

B.W.

¶ 36 After Q.W. confirmed again that she saw her father swing at

Magee, the following exchange occurred during the prosecution’s

redirect:

[PROSECUTOR]: Okay. Was it normal for you
to see your dad hitting anybody?

15

[PROSECUTOR]: Okay. Would you describe
your dad as an aggressive person?

Q.W.: Not at all.

[DEFENSE COUNSEL]: Objection, improper
character evidence.

THE COURT: Overruled. 404(a)(2).

[PROSECUTOR]: You can answer the question.

Q.W.: Not at all.

[PROSECUTOR]: How would you describe him?

Q.W.: Goofy jokester, likes to rap.

1. Analysis

¶ 37 Defense counsel told the jury in opening arguments that

Magee acted in self-defense. Consistent with that theory, M.H.

testified, in response to defense counsel’s questions, that Magee

didn’t shoot his gun until after B.W. started swinging at him. This

constitutes evidence that B.W., an alleged victim, was the first

aggressor. By eliciting this evidence, defense counsel opened the

door to the prosecution later rebutting it by offering evidence of

B.W.’s peacefulness. See CRE 404(a)(2); Baca, 852 P.2d at 1308

(the defendant opened the door to evidence of the victim’s

16
peacefulness by discussing self-defense during opening statements

and eliciting testimony that the victim’s wounds were consistent

with the defendant defending himself). As a result, the trial court

didn’t abuse its discretion by admitting Q.W.’s testimony about

B.W.’s peacefulness.

¶ 38 Magee also argues that Q.W.’s testimony that she never saw

her father hit anyone should have been excluded under Rule

404(a)(2) because it constituted evidence of “specific instances of

conduct” rather than a “general character trait[].” Because Magee

didn’t object to this specific testimony at trial, we review for plain

error, meaning the error must be both obvious and substantial.

Trujillo, ¶ 8.

¶ 39 Character is “a generalized description of a person’s

disposition, or of the disposition in respect to a general trait.”

Trujillo, ¶ 11 (citation omitted). In her testimony, Q.W. described

B.W.’s general disposition towards not hitting others. Although we

haven’t located any on-point Colorado authority addressing this

question, and Magee cites none, federal courts have recognized that

a witness’s testimony that a person never did something generally

qualifies as character evidence. See Sec. & Exch. Comm’n v. Peters,

17
978 F.2d 1162, 1171 (10th Cir. 1992) (the defendant’s testimony

that he had never been accused of wrongdoing was character

evidence); Gov’t of the V.I. v. Roldan, 612 F.2d 775, 777-78 (3d Cir.

1979) (the witness’s testimony that she never saw people go to the

defendant’s house and that the defendant never bothered anyone

related to the defendant’s character); see generally People v.

Gallegos, 226 P.3d 1112, 1117-18 (Colo. App. 2009) (federal court

decisions interpreting similar federal rules provide persuasive

guidance). We therefore conclude the trial court didn’t err by failing

to sua sponte exclude Q.W.’s testimony.

¶ 40 To the extent Magee argues that Q.W.’s testimony should have

been excluded for some other reason, we decline to address his

argument because it’s undeveloped. See People v. Lowe, 2021 CO

51, ¶ 20 n.4.

D. Cumulative Error

¶ 41 Magee also argues that the cumulative impact of the trial

court’s alleged errors requires reversal. But because we haven’t

identified any error, the cumulative error doctrine doesn’t apply.

Feldman, ¶ 50.

18
III. Disposition

¶ 42 We affirm the judgment.

JUDGE FOX and JUDGE KUHN concur.

19