District Court, Salt Lake Department The Honorable Deno G.
Himonas No. 101901835
J. Kittrell and Kristina H. Ruedas, Attorneys for Appellant.
D. Reyes and Kris C. Leonard, Attorneys for Appellee.
Stephen L. Roth authored this Opinion, in which Judges
Gregory K. Orme and David N. Mortensen concurred.
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.
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
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.
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 "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.
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.
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
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
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 ...