Background
Jessie James McGhee met John Jimenez in the parking lot of a Denver hotel, and Jimenez invited him to his room. After the three men present—McGhee, Jimenez, and Dustin Stefan—smoked methamphetamine together, McGhee emerged from the bathroom with a gun and pointed it at Jimenez. Stefan lunged at McGhee, a struggle ensued, and three gunshots were fired. Stefan died from a gunshot wound. McGhee then approached Jimenez and demanded his phones and drugs, taking two phones, methamphetamine, and marijuana before fleeing.
McGhee was charged in Denver District Court with felony murder, aggravated robbery, and robbery. The jury convicted him on all three counts. The trial court merged the aggravated robbery conviction into the felony murder conviction and sentenced McGhee to life in prison on the felony murder count, concurrent with a twelve-year term on the standalone robbery conviction. McGhee appealed, challenging the sufficiency of the evidence on felony murder, the unanimity of the jury verdicts on the robbery counts, the chain of custody for DNA evidence, and the merger analysis.
The case turned on a core factual question: whether McGhee had formed the intent to commit robbery before or at the time he shot Stefan—a prerequisite for felony murder liability under the version of Colorado’s felony murder statute applicable to McGhee’s May 2021 conduct.
The Court’s Holding
The Court of Appeals affirmed McGhee’s felony murder conviction, holding that the close temporal and spatial relationship between the shooting and the subsequent robbery permitted the jury to infer that McGhee formed the intent to rob Jimenez when he emerged from the bathroom with a drawn weapon. Viewing the evidence in the light most favorable to the prosecution, the court found the sequence of events—gun drawn, confrontation, shooting, immediate demand for phones and drugs—sufficient to support that inference beyond a reasonable doubt.
The court rejected McGhee’s unanimity challenge, concluding there was no obvious risk the jury was divided as to the identity of the robbery victim. The record made clear the prosecution presented Jimenez as the robbery victim throughout, and the jury would have had no basis to independently construct a theory that Stefan was the person robbed. The court similarly found no plain error in the admission of DNA evidence despite alleged breaks in the chain of custody, reasoning that because defense counsel never objected and conceded McGhee’s presence in the room at every stage of trial, the trial court had no obvious reason to intervene sua sponte.
On merger, the court agreed with McGhee in part. Because the robbery and aggravated robbery convictions arose from a single victim (Jimenez), a single location, and a single continuous event, the robbery conviction should have merged into the aggravated robbery conviction. The court therefore vacated the robbery conviction and sentence and remanded with instructions to amend the mittimus to reflect that robbery merges into aggravated robbery, which in turn merges into the felony murder conviction.
Key Takeaways
- Under Colorado’s felony murder statute, a defendant’s intent to commit the predicate felony may be inferred from circumstantial evidence, including actions taken immediately after the killing, where there is a close temporal and spatial relationship between the homicide and the subsequent felony.
- A unanimity challenge to robbery convictions fails where the evidence, arguments, and trial court’s statements consistently identified a single victim—jurors cannot be expected to construct an alternative victim theory that no party ever presented.
- Chain-of-custody objections not raised at trial are reviewed only for plain error; where defense counsel conceded the defendant’s presence at the crime scene throughout trial, any foundational gap in DNA evidence was not “obvious” error requiring sua sponte judicial intervention.
- When robbery and aggravated robbery charges arise from a single victim, single location, and single continuous event, the lesser offense must merge into the greater—courts cannot preserve a standalone robbery conviction as an offset for a separate merger issue that was not cross-appealed.
Why It Matters
This decision reinforces Colorado’s broad approach to felony murder liability, confirming that juries may look at the totality of a defendant’s conduct—including post-shooting demands—to infer that robbery intent predated the killing. Prosecutors can take comfort that a near-immediate transition from lethal force to property taking will ordinarily satisfy the “in the course of or in furtherance of” element without requiring direct evidence of premeditated intent to steal.
The merger ruling carries procedural significance for sentencing practice: defense attorneys should scrutinize cases where a trial court merges one conviction upward but leaves a lesser charge standing independently. Here, the failure to cascade the merger meant McGhee faced a separate twelve-year robbery sentence that the appellate court found legally improper. The decision also illustrates the limits of plain-error review for evidentiary objections—strategic silence at trial about chain-of-custody deficiencies will rarely support reversal on appeal.