Peo v. McGhee

22CA2147 Peo v McGhee 06-04-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA2147
City and County of Denver District Court No. 21CR3297
Honorable Jennifer B. Torrington, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Jessie James McGhee,

Defendant-Appellant.

JUDGMENT AFFIRMED IN PART AND VACATED IN PART,
AND CASE REMANDED WITH DIRECTIONS

Division II
Opinion by JUDGE TOW
Harris and Brown, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced June 4, 2026

Philip J. Weiser, Attorney General, Marixa Frias, Assistant Attorney General,
Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Meredith K. Rose, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Jessie James McGhee, appeals the judgment of

conviction entered on a jury verdict finding him guilty of felony

murder and robbery. We affirm the judgment in part, vacate it in

part, and remand with directions.

I. Background

¶2 The jury heard evidence that would support the following

findings.

¶3 John Jimenez was living at a hotel with his friend, Dustin

Stefan. One evening, Jimenez met McGhee while smoking a

cigarette in the hotel’s parking lot. McGhee said his name was

James. After talking for a bit, Jimenez invited McGhee to his hotel

room.

¶4 In the hotel room, McGhee, Stefan, and Jimenez smoked

methamphetamine. Jimenez testified that they were talking about

life and death and, as a result, the energy in the room “was super

tense and full of friction and was making [him] nervous.” After

going into the bathroom, McGhee came back into the room with a

gun and pointed it at Jimenez, who got on the floor underneath the

desk. Jimenez saw Stefan lunge toward McGhee and a fight

ensued. Jimenez heard a gunshot and saw the fight move toward

1
the kitchenette. As the struggle continued, he heard a second

gunshot, then a third, and then silence. Jimenez saw McGhee’s feet

darting around the room, then McGhee approached him and

demanded Jimenez’s phones and drugs. Jimenez gave McGhee one

phone, and McGhee grabbed another phone off the nightstand.

McGhee also took methamphetamine and marijuana and left.

Jimenez dialed the hotel operator and said he needed police and an

ambulance.

¶5 Police arrived and found Stefan lying on the floor of the room.

Stefan was transported to the hospital where he died from a

gunshot wound.

¶6 The jury found McGhee guilty of felony murder, aggravated

robbery, and robbery. The trial court merged the aggravated

robbery conviction into the felony murder conviction and sentenced

McGhee to life in the custody of the Department of Corrections for

the felony murder conviction concurrent to a twelve-year term for

the robbery conviction.

II. Sufficiency of the Evidence

¶7 McGhee contends that there was insufficient evidence to

support his conviction for felony murder because the prosecution

2
failed to prove that McGhee killed Stefan “in the course of or in

furtherance of” the predicate offense of robbery. More specifically,

McGhee contends that the evidence fails to establish that he had

formed the intent to commit or attempt to commit the robbery

either before or at the time of the shooting. We disagree.

A. Standard of Review and Applicable Law

¶8 “We review the record de novo to determine whether the

evidence before the jury was sufficient both in quantity and quality

to sustain the convictions.” Dempsey v. People, 117 P.3d 800, 807

(Colo. 2005). We view the direct and circumstantial evidence as a

whole and in the light most favorable to the prosecution to

determine whether the evidence was “sufficient to support the

conclusion by a reasonable mind that the defendant was guilty

beyond a reasonable doubt.” People v. Griego, 2018 CO 5, ¶ 24. In

doing so, we give the prosecution “the benefit of every reasonable

inference which might be fairly drawn from the evidence.” People v.

Perez, 2016 CO 12, ¶ 25 (quoting People v. Gonzales, 666 P.2d 123,

128 (Colo. 1983)).

B. Analysis

¶9 The relevant felony murder statute provides that a

3
person commits the crime of murder in the
first degree if[,] . . . [a]cting either alone or with
one or more persons, he or she commits or
attempts to commit . . . robbery, . . . and, in
the course of or in furtherance of the crime
that he or she is committing or attempting to
commit, or of immediate flight therefrom, the
death of a person, other than one of the
participants, is caused by anyone.

§ 18-3-102(1)(b), C.R.S. 2020.1

¶ 10 “Where, as here, there is a close temporal and spatial

relationship between a killing and subsequent felony, the

defendant’s intent to commit the underlying felony may be inferred

from the circumstances.” People v. Phillips, 219 P.3d 798, 800-01

(Colo. App. 2009). McGhee came out of the bathroom with the gun

drawn and pointed it at Jimenez. According to Jimenez’s

testimony, after the third gunshot the “room goes completely silent,”

then, “at that point,” Jimenez sees McGhee’s feet darting about the

room and McGhee approaches Jimenez for phones and drugs.

1 Felony murder was reclassified as second degree murder in 2021.

Ch. 58, secs. 1-2, §§ 18-3-102(1)(b), -103(1)(b), 2021 Colo. Sess.
Laws 235-36. That change does not impact McGhee’s conviction
because the shooting here occurred in May 2021 and the
classification change applies only to offenses committed on or after
September 15, 2021. See Sec. 6, 2021 Colo. Sess. Laws at 238.

4
¶ 11 At oral argument, McGhee’s counsel conceded that a

defendant’s actions after the killing act may be relevant to what

their intent was before the killing act, though she asserted that

McGhee’s acts after the shooting were not sufficient to support an

inference of his preshooting intent to commit robbery. To the

contrary, viewing the evidence in the light most favorable to the

prosecution and giving them the benefit of all reasonable inferences

therefrom, we conclude that the sequence of events supports that

McGhee had formed the intent to commit the robbery when he came

out of the bathroom. We therefore reject McGhee’s sufficiency

challenge.2

III. Unanimity

¶ 12 McGhee contends that his convictions for robbery and

aggravated robbery must be reversed because the evidence,

arguments, jury instructions, and verdict forms created an obvious

2 The parties spend a considerable portion of their argument,

including discussion of the pertinent law in other states, on
whether felony murder requires that a defendant form the intent to
commit the predicate felony before committing the homicidal act.
In light of our conclusion that the evidence supports an inference
that McGhee had formed the intent to rob Jimenez before he shot
Stefan, we need not consider this issue.

5
risk of nonunanimous jury verdicts, specifically with respect to who

the victim was for the robbery and aggravated robbery convictions.

We disagree.

A. Additional Background

¶ 13 The complaint charged McGhee with robbery, naming Jimenez

as the victim. The complaint also charged McGhee with aggravated

robbery, naming Jimenez and Stefan as the victims and stating that

McGhee “knowingly wounded or struck [Jimenez] and/or [Stefan]

with a deadly weapon,” a handgun. The trial court read these

charges to the venire during voir dire, identifying who the victim(s)

were for each respective count. During opening statement, the

prosecution did not identify who the victim(s) of robbery and

aggravated robbery were. During closing statement, the

prosecution argued that McGhee “took Jimenez’s phones.” Neither

the jury instructions nor the verdict forms named the victim(s) for

robbery or aggravated robbery. Rather, the jury instructions

allowed the jury to convict McGhee of robbery and aggravated

robbery if it found, among other things, that he had taken

something of value “from the person or presence of another.”

6
(Emphasis added.) The standard unanimity instruction was given.

See COLJI-Crim. E:23 (2025).

B. Standard of Review and Applicable Law

¶ 14 We review de novo whether a defendant’s right to a unanimous

verdict is violated due to the risk that the jury was divided as to the

identity of the victim. See People v. Smith, 2018 CO 33, ¶ 26. In

asking whether the jury’s verdict was unanimous, we must ask if it

is impossible to determine whether the jury unanimously agreed as

to a particular victim. See People v. Simmons, 973 P.2d 627, 630

(Colo. App. 1998).

¶ 15 Defense counsel did not raise this issue at trial, so we will

reverse only for plain error, meaning that the error was obvious and

substantial. Hagos v. People, 2012 CO 63, ¶ 14. An error is

obvious if it “contravene[d] a clear statutory command, a well-

settled legal principle, or established Colorado case law.” People v.

Crabtree, 2024 CO 40M, ¶ 42. An error is “substantial” if it “so

undermined the fundamental fairness of the trial itself as to cast

serious doubt on the reliability of the judgment of conviction.”

Garcia v. People, 2019 CO 64, ¶ 3 (quoting Hagos, ¶ 18). An error

in jury instructions “generally does not rise to the level of plain

7
error unless a review of the entire record establishes a reasonable

possibility that the improper instruction contributed to the

defendant’s conviction.” Smith, ¶ 25.

¶ 16 McGhee was charged with aggravated robbery under

section 18-4-302(1)(b), C.R.S. 2025. To prove a violation of this

statutory provision, the prosecution had to show that McGhee

committed robbery by knowingly taking anything of value from the

presence of another by the use of force, threats, or intimidation.

Id.; see § 18-4-301, C.R.S. 2025 (robbery). And, as the jury was

instructed, the prosecution had to prove that, during the robbery or

the immediate flight therefrom, McGhee knowingly wounded or

stuck any person with a deadly weapon. See § 18-4-302(1)(b).

Notably, the person wounded does not have to be the same as the

person robbed.

C. Analysis

¶ 17 Our review of the record — including the evidence, the

arguments, the statements of the trial judge, and the jury

instructions — does not reveal an obvious risk that the jury would

have understood that anyone other than Jimenez was the victim of

robbery and aggravated robbery. See Smith, ¶ 26.

8
¶ 18 As to the aggravated robbery, the prosecution established that

McGhee pointed his gun at Jimenez and then took Jimenez’s

phones, one directly from Jimenez’s person and one from the

nightstand. The prosecution also established that during the act of

this robbery, McGhee shot and killed Stefan.

¶ 19 McGhee argues that the jury may have found that the phones

were taken from either Jimenez’s or Stefan’s presence. In

particular, he argues that the jury could have found that McGhee

took the phones from Stefan’s presence because they were within

Stefan’s “reach, inspection[,] or observation” and he could have

retained control over them but for McGhee’s use of force.3 People v.

Borghesi, 66 P.3d 93, 103 (Colo. 2003) (The term “presence of

another” has been construed in case law “to mean that the property

taken must be within the victim’s reach, inspection or observation

so that the victim would be able to retain control over the property

3 To the extent McGhee contends for the first time in his reply brief

that he also took the drugs from Stefan’s presence, we do not
address this argument. See People v. Boles, 280 P.3d 55, 61 n.4
(Colo. App. 2011) (declining to address an argument raised for the
first time in a reply brief).

9
but for the force or threat of force” by the defendant against the

victim.). But this argument lacks both factual and legal support.

¶ 20 First, the jury heard no evidence that the phones were within

Stefan’s reach. And the prosecutor never suggested that this was

the basis for the robbery charge.

¶ 21 Second, the jury would have had to come up with this legal

theory on its own. The jury was not instructed on Borghesi’s

explanation of what “presence of another” meant (nor did McGhee

request that the court give such an instruction). And neither the

prosecution nor defense counsel ever argued this theory to the jury.

Indeed, the defense never disputed that if phones were taken, they

would have been taken only from Jimenez; rather, McGhee’s theory

was that he had not taken any phones.

¶ 22 Nor was there any evidence that Jimenez was wounded or

struck with a deadly weapon. Indeed, McGhee’s reliance on

Jimenez’s testimony that he felt a gunshot breeze is misplaced

because that does not equate to being wounded or struck — and no

one suggested to the jury that it did. And the prosecutor explained,

“The rest of aggravated robbery requires he knowingly wounded or

struck a person with a deadly weapon. It doesn’t have to be John

10
Jimenez. Shooting Dustin Stefan is sufficient for aggravated

robbery.” Thus, no reasonable juror could have been confused as

to which person was robbed (Jimenez) and which person was

wounded (Stefan).4

¶ 23 For the same reasons, we conclude that no reasonable juror

could have been confused as to who the victim of the robbery was

(Jimenez). Further, the trial court named Jimenez as the only

victim when it read that charge to the venire. See Smith, ¶ 27.

¶ 24 McGhee’s reliance on Simmons is unavailing. There, the

menacing charge identified one individual as the victim, but the

prosecutor argued during closing that the jury could find the

defendant guilty if he menaced that person or a different person.

Simmons, 973 P.2d at 630. But as noted, the prosecutor here did

not argue that Stefan was the victim of either the robbery or

aggravated robbery. See Smith, ¶ 34 (distinguishing Simmons on

the same basis).

4 We do not address McGhee’s undeveloped argument that because

the complaint named both Jimenez and Stefan as victims of
aggravated robbery, the jury should have been required to find the
elements satisfied as to both men. See People v. Stone, 2021 COA
104, ¶ 52 (appellate courts do not address undeveloped arguments).

11
¶ 25 Finally, the trial court’s instruction in this case that “the

verdict for each charge must represent the considered judgment of

each juror, and it must be unanimous” could be read to have

required unanimous agreement as to who the victim of the robbery

was and who the victim of the aggravated robbery was. Cf. People v.

Wester-Gravelle, 2020 CO 64, ¶ 38 (holding that the district court

did not plainly err by not sua sponte giving a modified unanimity

instruction where it instructed the jury that any verdict had to be

unanimous as to “all parts of it”). With no evidence to the contrary,

we assume the jury heeded this instruction. People v. Villa, 240

P.3d 343, 352 (Colo. App. 2009).

¶ 26 Thus, we discern no reversible error.

IV. Chain of Custody

¶ 27 McGhee next contends that the trial court erred by admitting

DNA evidence because the chain of custody for the samples taken

from the scene was broken twice. We discern no reversible error.

A. Additional Background

¶ 28 Various items of evidence were collected from the hotel room,

including a live round, eyeglasses, and six swabs of blood from

various locations in the room. Officer Jared Lippert collected the

12
live round and then turned it over to the homicide unit. Kylie

Verderosa and Ross McColm, criminologists with the Denver Police

Department Crime Laboratory (Denver Crime Lab), collected the

eyeglasses and the six blood swabs, which were marked with police

markers.

¶ 29 Kristin Denning, an analyst for the Denver Crime Lab, tested

the swabs for blood and put each of the samples that tested positive

for blood into test tubes. She also tested the items collected for

blood and cellular material and put those samples into test tubes.

For example, she identified material on the eyeglasses that

appeared to be blood; collected a sample of that material; tested it

for blood, which was positive; and then placed that blood sample

into a test tube. She also sampled a portion of the eyeglasses that

did not appear to be covered in blood for cellular material, which

tested positive for cellular material and blood, and put that sample

in another test tube. All the test tubes with the blood and cellular

material samples were placed into a secure box in a freezer for

subsequent DNA analysis, which consisted of developing the DNA

profile for each sample.

13
¶ 30 At trial, Denning’s forensic scientist colleague, Lauren

Fletcher, testified about Denning’s process and results because

Denning had retired. Fletcher also explained that a saliva sample

was collected from McGhee and that the cotton was cut off the swab

and placed into a labeled test tube, which was sent for DNA

analysis.

¶ 31 Andrew Carmel, a forensic scientist with the Denver Crime

Lab, testified that he can develop DNA profiles from samples of

biological material, including blood and cellular material samples.

He testified that he developed a DNA profile from McGhee’s saliva

sample and that it matched the DNA profiles he developed from the

items and swabs collected from the scene.

B. Applicable Law and Standard of Review

¶ 32 Authentication is a condition precedent to the admissibility of

evidence. CRE 901(a). The condition is satisfied by “evidence

sufficient to support a finding that the matter in question is what

its proponent claims.” Id.

¶ 33 Though CRE 901 relates to the admission of evidence, the

same standard applies “if a proper identification of an object is

required for other purposes, even if the object itself is not offered”

14
as evidence. People v. Valencia, 257 P.3d 1203, 1206 (Colo. App.

2011). For example, before an expert can testify about the results

of the testing or analysis of an object, “[t]he object must be

identified” — that is, “some proof must be presented of a connection

between the object tested and the defendant, the victim, or the

crime.” Id. The rationale for the rule is that the expert’s testimony

is irrelevant unless the object is what its proponent alleges. Id.; see

also People v. Rodriguez, 2022 COA 11, ¶ 15 (unless the prosecution

could establish that the substance tested was the same substance

recovered from the defendant, the chemist’s testimony that the

tested substance was cocaine would be irrelevant).

¶ 34 “[W]hen the evidence, as here, is not readily identifiable and is

susceptible to alteration by tampering or contamination, the

proponent of the evidence must authenticate it by establishing a

chain of custody for the item.” Rodriguez, ¶ 21; People v.

Sutherland, 683 P.2d 1192, 1197 (Colo. 1984) (“The chain of

custody of any blood sample must be established, and failure to do

so may be excused only where circumstances provide reasonable

assurances of identity and unchanged condition of the sample.”).

The chain of custody method for authentication “requires that the

15
proponent of real evidence establish that the evidence was involved

in the incident and that the condition of the evidence at trial is

substantially unchanged.” Rodriguez, ¶ 23 (quoting People v.

Mascarenas, 666 P.2d 101, 112 (Colo. 1983)). “To do so, the

proponent must introduce evidence showing where the item has

been from its initial seizure until it is offered at trial.” Id.

¶ 35 We review a trial court’s evidentiary rulings for an abuse of

discretion. Id. at ¶ 11. A trial court abuses its discretion if its

ruling misconstrues or misapplies the law or is manifestly arbitrary,

unreasonable, or unfair. Id.

C. Analysis

¶ 36 McGhee contends that the chain of custody for the scene

samples was first broken when Fletcher testified as to what

Denning did with the samples because the testimony was hearsay.

He contends that the chain of custody was broken again when

Carmel failed to testify about receiving the test tubes that contained

the blood and cellular material samples from the swabs and items

collected from the scene.

¶ 37 Because McGhee did not object to Fletcher’s or Carmel’s

testimony based on lack of chain of custody, we will reverse only for

16
plain error. Even assuming, without deciding, that there was a

break in the chain of custody with respect to the scene samples, we

discern no plain error because any error would not have been

obvious to the trial court at the time the evidence was admitted.

See Crabtree, ¶ 42 (“[T]he plainness prong demands that the error

be ‘so clear-cut, so obvious,’ a trial judge should be able to avoid it

without benefit of objection.” (quoting Romero v. People, 2017 CO

37, ¶ 6)).

¶ 38 At the time Fletcher and Carmel testified, the trial court had

heard the parties’ opening statements. McGhee’s trial counsel had

told the jury that the prosecution would be “relying on the fact that

Mr. McGhee’s DNA is found in the room. His blood is found

splattered in different parts of the hotel room.” Counsel then said,

“Mr. McGhee does not deny that he was in the room that night.”

¶ 39 Of course, we do not suggest that these comments amounted

to either a stipulation to the admission of the DNA evidence or a

waiver of the ability to later challenge its admission. Trial attorneys

often make comments during opening statement based on what

they anticipate the evidence will be and then find themselves having

to pivot during trial when the evidence does not get presented as

17
expected. But, especially when a defense counsel does not pivot

during the trial, the parties’ opening statements inform the trial

judge’s perspective of what the issues in the case are likely to be.

Indeed, a trial judge is generally not privy to all the discovery in a

case and does not know the defense strategy until it plays out at

trial. The judge cannot know whether, or why, a party will insist on

all the evidentiary foundational steps being taken — or whether

there is a specific reason a party does not do so.

¶ 40 In other words, the trial judge has no way of knowing whether

a party that could, but chooses not to, assert an evidentiary

objection to the admission of evidence is not doing so because of

oversight or because there is some strategic reason for refraining

from doing so: perhaps they want to avoid calling the prosecutor’s

attention to a foundational deficiency to prevent the prosecutor

from rectifying it and to permit defense counsel to exploit the

deficiency during closing argument; or perhaps they want the

evidence admitted for their own purposes, which the trial judge

cannot anticipate because they lack a full awareness of the

anticipated evidence and strategy. And if the trial judge guesses

wrong — intervening in a way that unwittingly interferes with the

18
nonobjecting party’s strategy — they could unfairly damage the

defense’s case and give the jury (and the public) the impression that

the trial judge is not impartial but is, instead, allied with one of the

parties.

¶ 41 With this backdrop, we cannot say under these circumstances

that it was obvious to the trial court that Fletcher and Carmel

should not have been permitted to testify about McGhee’s DNA.

Defense counsel had not to that point pivoted away from the

strategy of conceding McGhee’s presence in the hotel room.

(Indeed, we note that even during closing argument, defense

counsel stated, “This case is not about Mr. McGhee being in the

room at some point that night, a fact that we haven’t disputed.”)

¶ 42 Further, the defense’s theory was that McGhee did not commit

robbery or aggravated robbery and thus did not commit felony

murder. This theory did not require challenging the DNA evidence.

Cf. People v. Miller, 113 P.3d 743, 751 (Colo. 2005) (instructional

error did not rise to level of plain error where subject of error was

not contested at trial); People v. Dunlap, 124 P.3d 780, 794 (Colo.

App. 2004) (same) (collecting cases).

19
¶ 43 Because nothing about the challenged testimony made the

trial court’s need to raise the issue “so clear-cut, so obvious” that it

did not need to wait for an objection, Crabtree, ¶ 42 (quoting

Romero, ¶ 6), there was no obvious error and, thus, no plain error

requiring reversal.

V. Merger

¶ 44 McGhee contends that the robbery conviction must merge into

the aggravated robbery conviction. We agree.

¶ 45 We review de novo whether merger applies to criminal

offenses. People v. Torres, 224 P.3d 268, 275 (Colo. App. 2009).

¶ 46 We have concluded that the robbery and aggravated robbery

convictions involved a single victim (Jimenez). See supra Part III.C.

The robbery also involved one location and one event, and McGhee’s

conduct was continuous and did not entail multiple, factually

distinct events, nor did the People present them as legally

separable. See People v. Wagner, 2018 COA 68, ¶ 13 (“In

determining whether offenses are factually distinct, we consider

factors including the time and location of the events, the

defendant’s intent, and whether the People presented the acts as

legally separable.”). Thus, because the counts of robbery and

20
aggravated robbery established a single offense, the trial court

should have merged the robbery conviction into the aggravated

robbery conviction. See People v. Serna-Lopez, 2023 COA 21,

¶¶ 21-22 (merging two counts of aggravated robbery where the

robbery involved one victim, one location, and one event).

¶ 47 The People contend that the robbery conviction need not

merge into the felony murder conviction because the crimes had

different victims. They argue that “the trial court determined it was

the aggravated robbery conviction that needed to be merged. But

where the victims of the respective offenses are not the same,

additional merger of the robbery conviction is not required.”

Further, the People contend, quoting People v. Bartowsheski, 661

P.2d 235, 247 (Colo. 1983), that the trial court is required to “give

as much effect to the jury’s resolution of the issues submitted to it

as can be done without running afoul of the defendant’s

constitutional and statutory rights.”

¶ 48 Essentially, the People appear to suggest that the trial court

should not have merged the aggravated robbery conviction into the

felony murder conviction (because the crimes had different victims),

and thus, we should not require the robbery conviction to be

21
similarly merged. But this argument misses the point. We do not

conclude that the robbery conviction must merge into the felony

murder conviction. We conclude only that the robbery conviction

should have been merged into the aggravated robbery conviction.

¶ 49 And to the extent the People suggest that the trial court erred

by merging the aggravated robbery conviction into the felony

murder conviction, that issue is not before us because the People

did not file a cross-appeal. See People v. Pimble, 2015 COA 112,

¶ 14. Moreover, we are aware of no authority (and the People cite

none) suggesting that we can ignore an erroneous sentencing

decision as a means of offsetting the effect of a different error that

we cannot address because it is not properly before us. We thus

will not disturb the merger of the aggravated robbery conviction into

the felony murder conviction.

¶ 50 Accordingly, we remand with instructions to amend the

mittimus to reflect that the robbery conviction merges into the

aggravated robbery conviction, which then merges into the felony

murder conviction.

22
VI. Disposition

¶ 51 McGhee’s robbery conviction merges into his aggravated

robbery conviction, which then merges into the felony murder

conviction. We therefore vacate the robbery conviction and

sentence and remand for correction of the mittimus. The judgment

is otherwise affirmed.

JUDGE HARRIS and JUDGE BROWN concur.

23