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.
2. 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.
¶ 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 [Q.W.]: Never.
[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.
[PROSECUTOR]: How would you describe him?
[Q.W.]: Goofy jokester, likes to rap.
¶ 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.