State v. Montoya

2017 UT App 110
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
JOSHUA J AMES M ONTOYA,
Appellant.
Opinion
No. 20140504-CA
Filed July 7, 2017
Third District Court, Salt Lake Department
The Honorable Deno G. Himonas
No. 101901835
Joel J. Kittrell and Kristina H. Ruedas, Attorneys
for Appellant
Sean D. Reyes and Kris C. Leonard, Attorneys
for Appellee
JUDGE S TEPHEN L. R OTH authored this Opinion, in which J UDGES
GREGORY K. O RME and DAVID N. M ORTENSEN concurred.
ROTH, Judge:
¶1 	Joshua James Montoya shot and killed Victim during a
confrontation between the two in front of Montoya’s residence
where Victim and Victim’s girlfriend (Girlfriend) had gone to
drop off the three children she shared with Montoya for a
weekend visit. Montoya appeals his jury conviction for murder,
a first degree felony, and obstruction of justice, a second degree
felony. We affirm.

State v. Montoya
20140504-CA 	2 	2017 UT App 110
BACKGROUND1
¶2 	Montoya 	associated 	with 	gangs 	and 	gang 	members.
Victim also associated with gangs and was by reputation a
violent 	man 	known 	to 	have 	committed 	armed 	robberies.
Substantial evidence of Victim’s violent focus on Montoya was
elicited at trial.
¶3 	In September 2009, about six months before the March
2010 killing, Montoya had gone to Girlfriend’s house at her
invitation to discuss an issue regarding a credit card. Victim’s
relationship with Girlfriend had already begun, and he was at
her 	house 	when 	Montoya 	arrived. 	While 	Montoya 	and
Girlfriend were talking, Victim “punched [Montoya] in the back
of the head” and fisticuffs ensued. Montoya then proceeded to
leave the house, but Victim would not let it go. With a gun in his
hand, he followed Montoya out of the house, lifted the gun, and
told Montoya to “get the fuck out of there” or he would shoot
him. Several months after this incident—a few weeks before
Victim’s 	death—Montoya 	heard 	from 	multiple 	sources 	that
Victim had been telling people that he planned on shooting
Montoya.
¶4 	On the day of the killing, Girlfriend drove with Victim to
drop her children off at Montoya’s house for a weekend visit.
Once they arrived, Montoya saw that Victim was in the car with
Girlfriend 	and 	the 	children, 	and 	he 	“instantly 	got 	scared”
because Victim “had been making threats that he was going to
shoot [Montoya].” Montoya was further “scared” because Victim
1. “On appeal, we review the record facts in a light most
favorable to the jury’s verdict and recite the facts accordingly.
We present conflicting evidence only as necessary to understand
issues raised on appeal.” State v. Holgate, 2000 UT 74, ¶ 2, 10 P.3d
346 (citations and internal quotation marks omitted).

State v. Montoya
20140504-CA 	3 	2017 UT App 110
“was very angry and upset.” Montoya and Victim began arguing
at 	the 	curbside 	in 	front 	of 	Montoya’s 	house, 	with 	Victim
remaining 	in 	the 	vehicle 	and 	Montoya 	standing 	by 	the
passenger’s door—on the same side of the vehicle as Victim. The
altercation escalated and culminated in Montoya shooting and
killing Victim.
¶5 	The State charged Montoya with murder and obstruction
of justice. Just who had brought the gun to the encounter was a
major source of contention at trial, with Montoya claiming that
Victim had produced the gun and threatened him with it during
the altercation and the State alleging that Montoya himself had
brought the gun with him from the house.
¶6 	Before trial, Montoya sought to admit evidence of another
violent episode involving Victim, which had occurred about six
months before his death (the apartment incident). Specifically,
Montoya 	wanted 	to 	introduce 	evidence 	about 	an 	incident
involving his cousin (Cousin), with whom Victim had been
romantically involved. After Victim’s relationship with Cousin
ended, Victim went to her apartment in September 2009 and
threatened her, purportedly over an ongoing dispute between
Cousin and Girlfriend. Apparently to emphasize his concerns,
Victim had fired a gun several times inside the apartment.
¶7 	Montoya 	argued 	that 	this 	evidence 	was 	admissible
pursuant to Utah Rule of Evidence 404(b) and that it would
show (1) that Victim “prepared and planned to bring a handgun
to 	a 	confrontation 	with 	[Montoya]” 	and 	(2) 	that 	Montoya
reasonably believed that use of force was necessary to defend
himself against Victim. The trial court denied the motion on the
grounds that the evidence was not offered for a non-character
purpose, the evidence was not relevant to show that the gun
Victim possessed during the apartment incident was the same
gun that killed him, 	and the potential for unfair prejudice
substantially outweighed any probative value.

State v. Montoya
20140504-CA 	4 	2017 UT App 110
¶8 	At trial, the parties disputed ownership of the gun that
fired the fatal bullet, and Montoya presented his theory of self
defense. He asserted that during the altercation, Victim, still
seated 	in 	the 	vehicle, 	pulled 	out 	a 	gun 	and 	pointed 	it 	at
Montoya. At this moment, according to Montoya, he tried to
push the gun away, gained control of it in a struggle and then
stumbled, hit the car door with his arm, and accidentally fired
the gun, striking and killing Victim. The State, on the other hand,
asserted that in the course of the altercation, Montoya pulled out
a gun from his pocket and deliberately shot Victim. Montoya’s
DNA 	was 	found 	on 	the 	gun’s 	grip, 	hammer, 	trigger, 	and
cylinder. Victim’s DNA was not found anywhere on the gun nor
on any of the bullets. Although Montoya claimed he had fired
the gun at close range in the course of a struggle, the medical
examiner testified that he had not found any evidence of a close-
range discharge.
¶9 	The jury convicted Montoya on both counts. Montoya
retained new counsel and moved for a new trial on the grounds
that, inter alia, the court should have admitted evidence of the
apartment incident and that Montoya’s trial counsel provided
ineffective assistance by failing to call a gang expert. The court
denied the motion. Montoya timely appealed.
ISSUES AND STANDARDS OF REVIEW
¶10 	Montoya 	first 	contends 	that 	the 	trial 	court 	wrongly
denied his motion to admit evidence that, six months prior to his
death, Victim had brought a gun to Cousin’s apartment and
fired it during an argument related to Girlfriend. We review a
trial court’s decision to exclude evidence under Utah Rule of
Evidence 404(b) for abuse of discretion. State v. Lucero, 2014 UT
15, ¶ 11, 328 P.3d 841, abrogated on other grounds by State v.
Thornton, 2017 UT 9, 391 P.3d 1016.

State v. Montoya
20140504-CA 	5 	2017 UT App 110
¶11 	Montoya also challenges the trial court’s denial of his
motion for a new trial. “When reviewing a trial court’s denial of
a motion for a new trial, we will not reverse absent a clear abuse
of discretion by the trial court.” State v. Pinder, 2005 UT 15, ¶ 20,
114 P.3d 551 (citation and internal quotation marks omitted). “At
the same time, however, we review the legal standards applied
by the trial court in denying such a motion for correctness.” Id.
(citation and internal quotation marks omitted).
ANALYSIS
I. The Rule 404(b) Motion
¶12 	Montoya contends that the trial court erred in denying his
rule 	404(b) 	motion 	to 	introduce 	evidence 	of 	the 	apartment
incident.2 Montoya argues that this evidence is a “[relevant]
factor that the jury should have considered when evaluating
[Montoya’s] claim of self-defense.” He also argues that the
apartment incident “shows that [Victim] had a motive to bring a
gun 	to 	[Montoya’s] 	house 	and 	threaten 	him 	regarding 	his
relationship with [Girlfriend], because that was his motivation in
bringing a gun to [Cousin’s] house.”
¶13 	“Evidence of a crime, wrong, or other 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
2. 	The 	State 	argues 	that, 	on 	appeal, 	Montoya 	proffers 	the
evidence of the apartment incident for a reason not presented to
the trial court and therefore has failed to preserve his rule 404(b)
argument. However, having carefully reviewed the record of the
trial 	court 	proceedings, 	“we 	conclude 	the 	issue[] 	[was]
sufficiently preserved.” See State v. Harris, 2015 UT App 282, ¶ 7
n.6, 363 P.3d 555.

State v. Montoya
20140504-CA 	6 	2017 UT App 110
character.” Utah R. Evid. 404(b)(1). However, this evidence “may
be admissible for another purpose, such as proving motive,
opportunity, 	intent, 	preparation, 	plan, 	knowledge, 	identity,
absence of mistake, or lack of accident.” Id. R. 404(b)(2). We
assume 	without 	deciding 	that 	evidence 	of 	the 	apartment
incident was admissible. Nevertheless, we conclude that no
prejudice 	resulted 	from 	any 	alleged 	error 	in 	excluding 	the
evidence. See State v. Hamilton, 827 P.2d 232, 240 (Utah 1992)
(“[W]e can make an examination of the correctness of the trial
court’s . . . ruling [on the admissibility of evidence] unnecessary
by finding that any error was harmless.”); see also State v. Bair,
2012 UT App 106, ¶ 37, 275 P.3d 1050 (assuming without
deciding that an error occurred because even if the defendant
could demonstrate error, he could not demonstrate that the error
prejudiced him).
¶14 	“Any error, defect, irregularity or variance which does
not affect the substantial rights of a party shall be disregarded.”
Utah R. Crim. P. 30(a). “In circumstances where evidence should
have been admitted, [the failure to admit it] is reviewed for
harmless error.” State v. Sanchez, 2016 UT App 189, ¶ 11, 380 P.3d
375 (citation and internal quotation marks omitted), cert. granted,
390 P.3d 719 (Utah 2017) and 390 P.3d 727 (Utah 2017). Exclusion
is harmful if “‘it is reasonably likely a different outcome would
result with the introduction of the evidence and confidence in
the verdict is undermined.’” Id. (quoting State v. Colwell, 2000 UT
8, ¶ 26, 994 P.2d 177).
¶15 	Montoya argues that evidence of the apartment incident
was necessary to undermine the State’s theory that the gun that
killed Victim was Montoya’s because the evidence demonstrated
that Victim had a motive to bring a gun to Montoya’s house.
Montoya also argues that evidence of the apartment incident
was necessary to his theory of self defense to demonstrate that
Montoya’s actions were justified by a reasonable fear of Victim.
But “‘the mere possibility of a different outcome occurring [with]

State v. Montoya
20140504-CA 	7 	2017 UT App 110
the evidence is not enough.’” See id. ¶ 32 (additional internal
quotation marks omitted) (quoting State v. Thomas, 1999 UT 2,
¶ 26, 	974 	P.2d 	269). 	Montoya 	must 	demonstrate 	that 	the
exclusion was “‘so prejudicial and so substantial that, absent the
error, it is reasonably probable that the result would have been
more favorable for [him].’” See id. (quoting Thomas, 1999 UT 2,
¶ 26). Montoya has not met this burden.
¶16 	Although the jury did not hear evidence of the apartment
incident, there was substantial evidence presented at trial to
support Montoya’s contentions that Victim had a reason to bring
a gun to Montoya’s house and that Montoya had a reasonable
fear that Victim meant to do him serious harm. For instance,
witnesses testified that Victim associated with gangs, that he had
a reputation for violence, and that he was known to have
committed armed robberies. Further, the jury heard about an
incident six months before Victim’s death in which Victim had
started a fight with Montoya by “punch[ing Montoya] in the
back of the head” because he thought that Montoya was “getting
mad 	at” 	Girlfriend. 	Victim 	then 	followed 	Montoya 	out 	of
Girlfriend’s house, pulled out a gun, pointed it at Montoya, and
told him to “get the fuck out of there” or he would shoot him.
Moreover, the jury was presented with evidence that within
weeks 	of 	Victim’s 	death, 	Montoya 	had 	heard 	from 	several
people that Victim had expressed an intention to shoot him, and
Montoya testified that Victim was “known to be violent and
carry guns.” Girlfriend testified that Victim had told her he had
a gun in his possession as late as two days before the shooting,
though she said he claimed he had disposed of it.
¶17 	Thus, the evidence Montoya presented at trial provided
substantial support for his theory that Victim had a motive to
bring a gun to Montoya’s house on the day Victim died. And the
admitted evidence was significantly more supportive of his
theory than the excluded evidence because it focused specifically
on Victim’s relationship with and threats of violence against

State v. Montoya
20140504-CA 	8 	2017 UT App 110
Montoya rather than on Victim’s relationship with Girlfriend
and Cousin. The admitted evidence also supported Montoya’s
claim 	that 	he 	acted 	in 	lawful 	self 	defense, 	that 	is, 	with 	a
reasonable belief that deadly force was necessary to prevent
death or serious bodily injury from Victim’s imminent use of
unlawful force unlike the evidence of the apartment incident. See
Utah Code Ann. § 76-2-402 (LexisNexis 2012). Thus, the jury had
already heard the strongest evidence in support of Montoya’s
theory of self defense: that Victim had previously pulled a gun
on Montoya and directly threatened to shoot him over a dispute
with Girlfriend, and that Victim had subsequently warned their
mutual acquaintances that he planned to shoot Montoya.
¶18 	It “‘is the exclusive function of the jury to weigh the
evidence and to determine the credibility of the witnesses.’” State
v. Davis, 2014 UT App 77, ¶ 4, 324 P.3d 678 (quoting State v.
Booker, 709 P.2d 342, 345 (Utah 1985)). It is apparent from the
verdict that the jury did not believe Montoya’s version of the
events that led to Victim’s death. And, given the evidence that
the jury did hear about Victim’s violent nature in general, his
particular 	animus 	towards 	Montoya 	in 	the 	context 	of 	the
relationship of both men to Girlfriend, his attack on Montoya
and his threats to kill him, and his recent possession of a gun, we
are not persuaded that adding the apartment incident to the mix
would have tilted the jury’s view of either Montoya’s credibility
or the circumstances of Victim’s death in Montoya’s favor. In
other words, we are not persuaded that with the incremental
addition of the apartment incident, it is likely that “‘the result
would have been more favorable for [Montoya].’” See Sanchez,
2016 UT App 189, ¶ 32 (quoting Thomas, 1999 UT 2, ¶ 26).
¶19 	Accordingly, because Montoya has not shown that his
defense 	was 	prejudiced 	by 	the 	court’s 	decision 	to 	exclude
evidence of the apartment incident, he has not persuaded us that
any 	error 	in 	that 	decision 	warrants 	remand 	for 	a 	new
proceeding.

State v. Montoya
20140504-CA 	9 	2017 UT App 110
II. Motion for a New Trial
¶20 	Montoya next contends that the trial court abused its
discretion by denying his motion for a new trial. Montoya’s
motion asserted several grounds for relief, but he challenges the
court’s denial on only two of those grounds.
¶21 	First, Montoya argues that the court erred in not allowing
him to introduce evidence of the apartment incident at trial and
“failed to correct this error when it denied [Montoya’s] motion
for a new trial on this issue.” Our conclusion that any alleged
error in excluding this evidence was harmless is also dispositive
of Montoya’s contention that the trial court abused its discretion
in denying his motion for a new trial on this issue. A trial court
may “grant a new trial in the interest of justice if there is any
error or impropriety which had a substantial adverse effect upon
the rights of a party.” Utah R. Crim. P. 24(a). A new trial is not
necessary, 	however, 	where 	an 	error 	is 	“‘sufficiently
inconsequential 	that 	we 	conclude 	there 	is 	no 	reasonable
likelihood 	that 	the 	error 	affected 	the 	outcome 	of 	the
proceedings.’” State v. Fairchild, 2016 UT App 205, ¶ 17, 385 P.3d
696 (quoting State v. Verde, 770 P.2d 116, 120 (Utah 1989)). In
other words, “a new trial is not merited where [an] error[] [is]
harmless.” Id. Because we have already concluded that any
alleged error in excluding evidence of the apartment incident
was harmless, the trial court did not abuse its discretion in
denying Montoya’s motion for a new trial on this basis. See id.
¶ 25.
¶22 	The second basis for Montoya’s new trial motion was his
contention that trial counsel’s failure to call a gang expert to
testify at trial amounted to ineffective assistance of counsel.
Montoya argues that the court erred in denying his motion for a
new trial on this issue because a gang expert “could have
provided evidence demonstrating [Girlfriend’s] reasons to testify

State v. Montoya
20140504-CA 	10 	2017 UT App 110
falsely, which would have affected her credibility before the
jury.”
¶23 	To succeed on a claim of ineffective assistance of counsel,
a defendant must show both “that counsel’s performance was
deficient” and “that the deficient performance prejudiced the
defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984); see
also State v. Nelson, 2015 UT 62, ¶ 12, 355 P.3d 1031. To establish
that trial counsel rendered deficient performance, a defendant
must “overcome the presumption that, under the circumstances,
the challenged action might be considered sound trial strategy.”
Strickland, 466 U.S. at 689 (citation and internal quotation marks
omitted). 	“[T]he 	question 	of 	deficient 	performance 	is 	not
whether some strategy other than the one that counsel employed
looks superior given the actual results of trial. It is whether a
reasonable, competent lawyer could have chosen the strategy
that was employed in the real-time context of trial.” Nelson, 2015
UT 62, ¶ 14 (citation and internal quotation marks omitted). And
to demonstrate prejudice, the defendant “must show that there is
a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Strickland, 466 U.S. at 694.
¶24 	In 	denying 	Montoya’s 	new 	trial 	motion, 	the 	court
concluded that counsel had “a legitimate, sound, tactical reason
for [the] decision not to call a gang expert,” and that there was
“no 	prejudice 	arising 	from 	that 	decision, 	given 	the 	gang
evidence that was, in fact, introduced.” We agree with the trial
court.
¶25 	Under the circumstances, counsel’s decision not to call a
gang expert to testify at trial can “be considered sound trial
strategy.” See id. at 689 (citation and internal quotation marks
omitted). 	Montoya’s 	trial 	counsel 	expressed 	concern 	about
“allowing the trial to devolve into one that was simply about

State v. Montoya
20140504-CA 	11 	2017 UT App 110
gangs, or who was more involved in a gang,” because both
Montoya and Victim associated with gangs and gang members.
Trial counsel did not want the trial to “evolve into a gang trial,”
and decided not to call a gang expert for that reason. To avoid
drawing additional attention to both Montoya and Victim’s gang
involvement, 	“a 	reasonable, 	competent 	lawyer 	could 	have
chosen the strategy that was employed in the real-time context of
trial,” deciding that, in light of the other evidence available
regarding Girlfriend’s motivations to testify falsely, it was on
balance better not to call a gang expert. See Nelson, 2015 UT 62,
¶ 14 (citation and internal quotation marks omitted).
¶26 	In 	this 	regard, 	Montoya’s 	trial 	counsel 	would 	have
recognized that there was already a great deal of evidence that
would inevitably come in at trial about both Montoya’s and
Victim’s gang associations. And trial counsel plausibly could
have concluded that specific testimony about fears of retaliation
held by Girlfriend and others would be naturally reinforced by
the gang context without further emphasizing it through the
testimony of a gang expert. Thus, in this case, as in many others,
the calculations of counsel in weighing the pros and cons of one
strategy over another is, in essence, a judgment about what is
most likely to work to the client’s benefit in a complex trial
process that requires that many choices be made. See State v.
Franco, 2012 UT App 200, ¶ 10, 283 P.3d 1004 (“A decision by
counsel 	that 	reasonably 	weighs 	the 	risks 	and 	benefits 	of
available strategic approaches before choosing one as preferable
to others cannot support a claim that counsel was deficient in
either strategy or performance, even if the approach did not lead
to the desired result.”). Accordingly, Montoya’s trial counsel did
not perform deficiently. See Strickland, 466 U.S. at 687. The
evidence at trial seems to support the judgment trial counsel
made here—a judgment reinforced by the fact that Montoya has
not demonstrated any prejudice from his counsel’s decision not
to call a gang expert.

State v. Montoya
20140504-CA 	12 	2017 UT App 110
¶27 	Montoya argues that a gang expert “would have testified
regarding the culture of retaliation in gangs and the effect it has
on witnesses testifying in court” and would have undermined
the credibility of Girlfriend’s damaging testimony. But while the
jury did not hear from a gang expert, it did hear testimony that
both Victim and Montoya were associated with gangs and that
threats and fear of retaliation were at play in the aftermath of
Victim’s death—specifically that Victim’s family threatened to
retaliate 	against 	Montoya 	after 	he 	killed 	Victim 	and 	that
Girlfriend herself was fearful of retaliation.
¶28 	The jury heard evidence throughout the trial about both
Montoya’s and Victim’s gang associations. More specifically, the
jury heard substantial evidence that Girlfriend feared retaliation
from Victim’s family and associates and had other concerns that
could have influenced her willingness to testify truthfully about
the nature of Montoya’s role in the killing. For instance, Cousin
testified that Girlfriend had “made comments before” to Cousin
about being “afraid of [Victim and] his family.” Defense counsel
then played an audio recording of a phone call between Cousin
and Girlfriend after the shooting on the night of Victim’s death.
In the conversation, Girlfriend stated that one of Victim’s family
members told her something that expressed the intensity of their
hostility toward Montoya: “I know that’s . . . the father of your
kids but he’s fucking dead. . . . If [the police] don’t catch him he’s
fucking dead.” And Cousin explained that after Victim died,
Girlfriend had seen Victim’s family and then told Cousin in a
separate conversation, “I’m scared I have to testify when this
comes up and I don’t know what’s going to happen.” Cousin
also testified that because she is related to Montoya, the police
“told [her] ex-husband that there’s going to be retaliation” from
those associated with Victim and that police “think that [Cousin]
and [Montoya’s sister] would be a target because [they’re] so
close” to Montoya. And finally, in closing argument, Montoya’s
trial 	counsel 	suggested 	gang 	retaliation 	as 	a 	motive 	for
Girlfriend to lie about whose gun fired the fatal bullet:

State v. Montoya
20140504-CA 	13 	2017 UT App 110
She has to face [Victim’s] family and his associates
in this audience and say, no, he wasn’t a good guy,
yes he brought the gun. She’s not going to say that.
She has every incentive. Look[,] we heard about
the fear. We heard about the gangs. These are the
same people she’s going to have to go back and
face tomorrow. You don’t, but she does consider
[her] best interest. She has to go back to Kearns.
¶29 	Montoya argues that “expert testimony regarding gang
culture, specifically with respect to its impact on witnesses and
their testimony, should have been presented in this case,” and
that 	this 	testimony 	“would 	have 	affected 	[Girlfriend’s]
credibility before the jury.” But, as we have discussed, the jury
did 	hear 	testimony 	that 	Cousin 	and 	Girlfriend 	both 	feared
retaliation from Victim’s family and associates, and the jury
heard trial counsel’s closing argument that strongly invoked fear
of gang retaliation as a motive for Girlfriend to lie in her trial
testimony. Given the evidence here, the intensity of the pressure
on Girlfriend to craft a story favorable to Victim and damning to
Montoya would not have been lost on the jury, even without a
gang expert. And trial counsel strongly emphasized this point in
closing argument: “[Girlfriend] has every reason to lie and she
told you she lies . . . . [She] is an admitted liar. She admitted to
you that she lies.” Cf. State v. Lyman, 2001 UT App 67U, para. 4
(concluding that no prejudice resulted from defense counsel’s
alleged failure to call additional witnesses when the jury heard
evidence 	from 	a 	witness 	“concerning 	[the] 	exact 	issue 	and
further evidence would have been cumulative”).
¶30 	Thus, Montoya has failed to demonstrate that there is “a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
Strickland v. Washington, 466 U.S. 668, 694 (1984).

State v. Montoya
20140504-CA 	14 	2017 UT App 110
¶31 	Accordingly, we conclude that the trial court correctly
determined that Montoya failed to satisfy both prongs of the
ineffective assistance of counsel inquiry, and therefore did not
abuse its discretion in denying Montoya’s motion for a new trial
on this issue. See State v. Pinder, 2005 UT 15, ¶ 20, 114 P.3d 551.
CONCLUSION
¶32 	For the foregoing reasons, we affirm the judgment of the
trial court.