               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 45266

STATE OF IDAHO,                                 )
                                                ) Filed: February 19, 2020
       Plaintiff-Respondent,                    )
                                                ) Karel A. Lehrman, Clerk
v.                                              )
                                                )
CYNTHIA MARIE MUNSON,                           )
                                                )
       Defendant-Appellant.                     )
                                                )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Melissa Moody, District Judge.

       Judgment of conviction and sentence for grand theft, vacated and case remanded.

       Eric D. Fredericksen, State Appellate Public Defender; Andrea W. Reynolds,
       Deputy Appellate Public Defender, Boise, for appellant. Erik R. Lehtinen argued.

       Hon. Lawrence G. Wasden, Attorney General; Kale D. Gans, Deputy Attorney
       General, Boise, for respondent. Kale D. Gans argued.
                 ________________________________________________

GRATTON, Judge
       Cynthia Marie Munson appeals from her judgment of conviction and sentence for three
counts of grand theft. Munson argues that the district court abused its discretion by making
various evidentiary rulings and imposing an unreasonable sentence. For the reasons set forth
below, we vacate the conviction and remand.
                                                I.
                        FACTUAL AND PROCEDURAL HISTORY
       Munson was a longtime employee, certified public accountant, and the Chief Financial
Officer (CFO) for Pioneer Title. 1 In May 2014, an employee, who reported to Munson, noticed


1
       Munson was an employee of Pioneer Holding Company which is the parent company for
various Pioneer Title companies. For ease of reference, we refer to all of the Pioneer entities as
Pioneer Title.

                                                1
some payroll irregularities relating to Munson in Pioneer Title’s deferred compensation reports.
After further investigation, the employee informed the Chief Executive Officer (CEO) of Pioneer
Title of these irregularities, and Munson was placed on a leave of absence. Thereafter, Pioneer
Title launched an internal investigation into the payroll irregularities.      The investigator
concluded that Munson was misappropriating funds in a variety of ways. After two months of
negotiations, Pioneer Title and Munson reached a civil settlement agreement (settlement
agreement) in which Pioneer Title agreed to waive any civil claims against Munson.            In
exchange and without admitting wrongdoing, Munson agreed to resign from her position at
Pioneer Title and repay Pioneer Title $1.3 million.
       Following the settlement agreement, the State presented the case to a grand jury and
Munson was charged by indictment with four counts. In Count I, grand theft (Idaho Code §§ 18-
2403(1), -2407(1)(b), -2409), the State alleged that Munson took payroll advances and did not
deduct them from her end of the month payroll checks. In Count II, grand theft by deception
(I.C. §§ 18-2403(2)(a), -2407(1)(b), -2409), the State alleged Munson failed to pay any portion
of her healthcare benefits and failed to contribute to her employer-sponsored 401K. In Count III,
grand theft (I.C. §§ 18-2403(1), -2407(1)(b), -2409), the State alleged that Munson wrote
discretionary bonus checks to herself in amounts not authorized by Pioneer Title. In Count IV,
forgery (I.C. § 18-3601), the State alleged Munson created and/or used a forged signature stamp
bearing the CEO’s signature to pass checks without the CEO’s knowledge or permission.
       The parties filed numerous pretrial motions. As relevant to this appeal, Munson filed a
motion in limine to prohibit the State from presenting evidence of the settlement agreement
under Idaho Rules of Evidence 401 and 408. The State filed a notice of its intent to admit
evidence of the agreement under I.R.E. 404(b). Ultimately, and without discussing I.R.E. 401 or
I.R.E. 408, the district court granted the State’s motion to allow evidence of the settlement
agreement under I.R.E. 404(b). Later, the State filed a motion in limine to prohibit Munson from
presenting evidence of a polygraph examination that she took which purportedly showed that
Munson was being truthful regarding the charges. During a hearing on the motion, the district
court orally granted the State’s motion, holding that the polygraph evidence was inadmissible but
invited Munson to provide the court with supporting authority regarding her position.
Thereafter, Munson filed a motion in limine to admit evidence and testimony of the polygraph
examination to rebut any evidence or testimony presented by the State to show consciousness of

                                                2
guilt, intent, absence of mistake, motive, or common plan or scheme.            The district court
characterized Munson’s motion as a motion to reconsider the court’s prior ruling to exclude
evidence of the polygraph and denied the motion. Munson waived her right to a jury trial. After
the eleven-day bench trial, the district court found Munson guilty of Counts I, II, and III.
Munson was sentenced to an aggregate unified term of twenty years with four years determinate.
Munson timely appeals.
                                                II.
                                           ANALYSIS
       Munson argues that the district court abused its discretion by: (A) allowing the State to
admit a computer screenshot of Pioneer Title’s electronic payroll file under the business records
exception; (B) allowing the State to present evidence of a civil settlement agreement between
herself and Pioneer Title; (C) excluding rebuttal evidence of a polygraph examination proffered
by Munson; and (D) imposing an unreasonable sentence.
A.     Admission of the Electronic Payroll Screenshot
       Munson argues that the district court erred in allowing the State to present Exhibit 10
which was a computer screenshot of Munson’s electronic payroll file. Specifically, Munson
contends that State’s Exhibit 10 does not fit within the business records exception to the hearsay
rule because it is not a business record and is demonstrably untrustworthy. In response, the State
argues that (1) Exhibit 10 fits within the business records exception to the hearsay rule; and
(2) regardless, any error in admitting Exhibit 10 is harmless.
       When reviewing the trial court’s evidentiary rulings, this Court applies an abuse of
discretion standard. State v. Jones, 160 Idaho 449, 450, 375 P.3d 279, 280 (2016). When a trial
court’s discretionary decision is reviewed on appeal, the appellate court conducts a multi-tiered
inquiry to determine whether the lower court: (1) correctly perceived the issue as one of
discretion; (2) acted within the boundaries of such discretion; (3) acted consistently with any
legal standards applicable to the specific choices before it; and (4) reached its decision by an
exercise of reason. State v. Herrera, 164 Idaho 261, 270, 429 P.3d 149, 158 (2018).
       In this case, both parties agree that Exhibit 10 is hearsay. The question is whether it falls
within the business records exception to the rule against hearsay.          The business records
exception, I.R.E. 803(6), at the time of Munson’s trial read as follows:



                                                 3
               (6) Records of regularly conducted activity. A memorandum, report,
       record, or data compilation, in any form, of acts, events, conditions, opinions, or
       diagnoses, made at or near the time by, or from information transmitted by, a
       person with knowledge, if kept in the course of a regularly conducted business
       activity, and if it was the regular practice of that business activity to make the
       memorandum, report, record, or data compilation, all as shown by the testimony
       of the custodian or other qualified witness . . . unless the opponent shows the
       source of information or the method or circumstances of preparation indicate lack
       of trustworthiness . . . .
       At trial, the State admitted Exhibit 10 through the testimony of C. Truchot and T. Hedin. 2
Truchot replaced Munson and is Pioneer Title’s current Chief Financial Officer. Hedin was a
former employee of Pioneer Title in the human resource and payroll department and reported to
Munson for eleven years. First, the prosecutor questioned Truchot regarding Exhibit 10 as
follows:
       Q:      Do you recognize State’s Exhibit 10?
       A:      Yes.
       Q:      What is State’s Exhibit 10?
       A:      It is the--what I refer to as the payroll, the employee’s master file in Sage,
               Accpac.
       Q:      So do you recognize it from working with those before as part of your
               employment?
       A:      Yes.
       Q:      How do you access that?
       A:      You access it through the payroll module.
       Q:      So there are safeguards in place to make sure that not just anyone can get
               into it?
       A:      Yes.
       Q:      Have you looked at State’s Exhibit 10 before?
       A:      Yes.
       Q:      And does it appear to be accurate to you?
       A:      Yes.
       Q:      And you’re in charge of that payroll module system for Accpac?
       A:      Yes.
Further, on cross-examination, Truchot testified that State’s Exhibit 10 “is a screenshot right out
of the [Pioneer Title’s payroll] system” and she knew it was accurate because she had “gone in
there and looked in the system, and it looks like that.”
       Later in the trial, the State questioned Hedin regarding Exhibit 10. Hedin testified that
she became suspicion of discrepancies in Munson’s payroll and reported her findings to T.

2
      The State used the screenshot to show that Munson’s advances, dental, medical, and
401K deductions had been turned off in 2007 and 2008.
                                                  4
Bundgard (Pioneer Title’s CEO). Per Bundgard’s request, Hedin went into Pioneer Title’s
system (the Accpac software) and “print[ed] more check registers for the years prior,” and
looked at Munson’s employee master file. Hedin testified that she was familiar with State’s
Exhibit 10 because it was a screenshot that she had taken of Munson’s employee master file.
Hedin explained that the screenshot was true and accurate to the best of her memory, was a
depiction of Munson’s employee master file, and was “where you go in and put all of the
employee’s information, as far as their salary, their insurance benefits, sick time, all that good
stuff.” The State moved to admit Exhibit 10, Munson objected, and the district court sustained
the objection. The State continued questioning Hedin as follows:
       Q:      So, again, what is State’s Exhibit 10?
       A:      It’s basically the payroll record. That’s where you put in the employee’s
               deductions, salary, so forth.
       Q:      And it’s the record that’s kept in the normal course of business at Pioneer
               when you were there?
       A:      Yes, in the payroll system. Um-hmm.
       Q:      Is it something that’s made at the time and altered at the time[], or was it
               something that was made recently?
       A:      Made at the time? I’m not sure I understand the question.
       Q:      So when you look at that, can you tell when--I guess, when are changes?
               Are changes in there immediate, or do they--
       A:      They have a start and an end date. And, really, the only time I used those
               dates for the employees was for our cafeteria plan, because it ended 11-30
               every year. So if someone participated, I wanted to make sure it stopped
               at the end of November. And if they re-signed up, we would go back in
               and change that information.
       Q:      So, going back to State’s Exhibit 10, how are you familiar with that exact
               screenshot?
       A:      Just this exact one--
       Q:      Yeah.
       A:      --or any employee?
       Q:      That exact one.
       A:      How am I familiar with it?
       Q:      Yes.
       A:      I had to pull this up for Tim to take a look at.
       Q:      Do you know how things get input on there?
       A:      How they get input?
       Q:      Like you talked about those end dates. How do those get placed on that
               screen, on that master--
       A:      You physically go in and change those on the computer.
       Q:      So, for that one that’s in front of you--
       A:      Um-hmm
       Q:      --Exhibit 10, who would have been doing that?

                                                5
       A:      I’m guessing Cindy.
       Q:      Why do you guess Cindy?
       A:      Well, because she was the only one who had access at the time. I was not
               doing payroll in 2007.
       Q:      You could have gone into the system after 2010?
       A:      I guess.
       Q:      But did you?
       A:      I did not, no.
       Q:      Do you know if you printed this State’s Exhibit 10 for Tim?
       A:      Yes.
       Q:      How did you do that?
       A:      You just do it. It’s a print screen of the--on the computer.
       Q:      Has it been changed or altered in any way, that you can tell?
       A:      No.
Next, Hedin confirmed that not just anyone could access the screen depicted in State’s Exhibit
10, only individuals with a password. She explained that “only people who were trained and
knowledgeable in the payroll system” had access to it which included herself and Munson.
Subsequently, the district court concluded that it would overrule Munson’s objection to
Exhibit 10.
       Based on the testimony at trial, Munson argues that the district court erred in finding that
the screenshot fit within the exception because: (1) the prosecutor did not present any evidence
regarding when the exhibit was made; (2) it was not kept in the course of a regularly conducted
business activity; and (3) the screenshot lacked trustworthiness based on the source of the exhibit
and the method and circumstances of its preparation.          In response, the State argues that
Exhibit 10 was an admissible business record under I.R.E. 803(6).
       We conclude that the district court properly admitted State’s Exhibit 10 under
I.R.E. 803(6). First, contrary to Munson’s contention, the prosecutor presented evidence of
when the screenshot was taken. Although I.R.E. 803(6) does not require the State to establish
when the copy of its business record was taken but rather that the record was created or “made at
or near the time by, or from information transmitted by, a person with knowledge,” Hedin
testified that the screenshot of the payroll file was taken in May of 2014. Second, Pioneer Title
kept payroll files in its Accpac software for its employees in the regular course of its business as
testified to by both Truchot and Hedin. In addition, Munson concedes in her reply brief that




                                                 6
“Pioneer Title undoubtedly maintains its electronic payroll file during the course of its regularly
conducted business . . . .” 3
        Third, Munson has not shown that the screenshot lacked trustworthiness. On appeal,
Munson argues that Hedin printed the screenshot and she was untrustworthy. Munson cites to
various areas of the transcript to show Hedin’s untrustworthiness. However, Munson directs the
Court’s attention to portions of the transcript that occurred after the district court had admitted
Exhibit 10. The portions she cites are unrelated to the arguments made in regard to Exhibit 10’s
admissibility. Once the State established that I.R.E. 803(6) applied, it was Munson’s obligation
under I.R.E. 803(6) to show “the source of information or the method or circumstances of
preparation indicate lack of trustworthiness.”       When Munson objected to the admission of
Exhibit 10 below, she did not make such an argument to the district court. As such, this
argument is not preserved for appeal. See State v. Garcia-Rodriguez, 162 Idaho 271, 275, 396
P.3d 700, 704 (2017). Thus, Munson has not shown that the district court abused its discretion in
admitting Exhibit 10. Accordingly, the district court did not err in admitting State’s Exhibit 10
as a business record. Because we conclude that this evidence was properly admitted, we need
not address whether its admission was harmless.
B.      Admission of the Settlement Agreement
        Next, Munson argues that the district court erred in allowing the State to present evidence
of the settlement agreement under Idaho Rule of Evidence 408. This Court reviews a decision
on a motion in limine for an abuse of discretion. State v. Richardson, 156 Idaho 524, 527, 326
P.3d 504, 507 (2014).
        Here, Munson filed a motion in limine, and a memorandum in support of her motion, to
exclude evidence of the settlement agreement and to prohibit the State from arguing that the

3
        It seems that Munson ultimately takes issue with the fact that Exhibit 10 was a screenshot
of the employee master file, the employee master files can be changed, and Pioneer Title did not
regularly take screenshots of its employee master files. She argues that Exhibit 10 is not a
business record, rather “It is a screenshot of a fully editable electronic form” and “The
information contained in the screenshot is not regularly kept anywhere” because once the
employee’s payroll information is changed “there is no record of the previous information.”
However, this argument is fundamentally flawed. Idaho Rule of Evidence 803(6) only requires
that the records are kept in the ordinary course of business. State’s Exhibit 10 is such a record
because as a function of running its business, Pioneer Title keeps payroll information on all of its
employees. The fact that an employee’s payroll information can be updated or changed does not
mean that the current information is not a business record.

                                                 7
settlement agreement was an admission of guilt. Munson argued that the evidence was irrelevant
under I.R.E. 401 and otherwise inadmissible under I.R.E. 408. Thereafter, the State filed a
notice of intent to admit evidence of the settlement agreement under I.R.E. 404(b) to show:
(1) “the money was taken without permission”; (2) “the taking was wrongful”; (3) “the defendant
is the person who took the money”; (4) the money “was taken from Pioneer Holding”; (5) “the
amount of the theft being over $1,000.00”; and (6) “the defendant’s knowledge of the theft”
because “[w]hen the jury hears that the defendant, a CPA, agreed to repay approximately
$1,300,000.00, to the victim after being caught, the jury could then make the logical inference
that the defendant knew of the theft.” In addition, the State filed an objection to Munson’s
motion to exclude evidence of the settlement agreement under I.R.E. 408. The district court
heard argument on these motions at the initial pretrial hearing, but reserved ruling on the
I.R.E. 404(b) and I.R.E. 408 motions.
        During the next pretrial hearing, the district court made oral rulings from the bench. The
district court’s oral rulings did not mention I.R.E. 404(b) or I.R.E. 408. The court did not make
clear if it found that (1) I.R.E. 408 applied in criminal proceedings, but the evidence here was not
being offered for a reason that was precluded under the rule; or (2) if I.R.E. 408 did not apply in
criminal cases at all. Thereafter, the district court issued a written order reflecting the oral
rulings from the bench. However, the written order was also unclear. Under the section titled
“Evidence of the July 16, 2014 Agreement,” while discussing Munson’s motion to exclude
evidence of the agreement, the order stated that “The Court denied this motion for the reasons set
forth below (‘State’s motion to admit evidence under I.R.E. 404(b) . . .’).” One sentence later,
while continuing to discuss Munson’s motion to prohibit the State from presenting evidence of
the agreement, the court wrote, “[t]he Court denied the motion in part and granted it in part.”
The district court explained that the “prosecution would be permitted to argue the agreement as
consciousness of guilt; however, the prosecutor would not be permitted to argue that defendant
admitted guilt or wrongdoing as part of the civil agreement because such an argument would
misstate the agreement.”
       Later in the written order, the district court addressed the State’s motion to admit
evidence of the agreement under I.R.E. 404(b) stating:
               The state moved to admit evidence in its case-in-chief . . . that defendant
       agreed to repay approximately $1,300,000 to the victim. The Court granted the
       state’s motion. The Court found that there was sufficient evidence from which a

                                                 8
       fact finder could conclude that the acts occurred and that the evidence was
       relevant to a disputed issue other than propensity.
               . . . The evidence of the agreement to repay approximately $1,300,000 to
       the victim is relevant to consciousness of guilt. Consciousness of guilt is not a
       listed purpose under Idaho Rules of Evidence 404(b); however, the list in that rule
       of evidence is not an exclusive list. State v. Sheahan, 139 Idaho 267, 279, 77 P.3d
       956, 968 (2003) . . . .
Ultimately, the district court allowed evidence of the settlement agreement in under
I.R.E. 404(b), but did not make clear its application of I.R.E. 408.
       On appeal, Munson urges this Court to conclude that I.R.E. 408 applies in criminal
proceedings and argues that the district court erred in allowing the State to present evidence of
the settlement agreement between Munson and Pioneer Title. In response, the State asks this
Court to conclude that I.R.E. 408 does not apply to criminal proceedings and argues that the
district court did not err by permitting the State to introduce evidence of the settlement
agreement. Thus, if I.R.E. 408 applies, the evidence was erroneously admitted.
       1.      I.R.E. 408’s application in criminal cases
       The applicability of I.R.E. 408 to criminal proceedings presents an issue of first
impression for this Court’s consideration. Prior to 2006, Federal Rule of Evidence 408 was
identical to the version of I.R.E. 408 in effect at the time of Munson’s trial and read as follows:
       Evidence of (1) furnishing, offering, or promising to furnish, or (2) accepting,
       offering, or promising to accept, a valuable consideration in compromising or
       attempting to compromise a claim which was disputed as to either validity or
       amount, is not admissible to prove liability for, invalidity of, or amount of the
       claim or any other claim. Evidence of conduct or statements made in compromise
       negotiations is likewise not admissible. This rule does not require the exclusion
       of any evidence otherwise discoverable merely because it is presented in the
       course of compromise negotiations. This rule does not require exclusion if the
       evidence is offered for another purpose, such as proving bias or prejudice of a
       witness, [negating] a contention of undue delay, or proving an effort to obstruct a
       criminal investigation or prosecution. Compromise negotiations encompass
       mediation.
       There is a federal circuit split regarding that version of the rule’s applicability to criminal
proceedings. The circuit split involves (1) differing interpretations of the language of Rule 408;
and (2) differing views on the underlying policy considerations for Rule 408’s implementation.
See United States v. Bailey, 327 F.3d 1131 (10th Cir. 2003) (explaining circuit split).
       Relying first on the plain language of the rule, and then on the policy considerations
underlying Rule 408, the Second, Sixth, and Seventh Circuits have held that Rule 408 only

                                                  9
applies in civil proceedings and does not preclude the admissibility of such settlements in
criminal proceedings. See United States v. Logan, 250 F.3d 350 (6th Cir. 2001); Manko v.
United States, 87 F.3d 50, 54-55 (2d Cir. 1996); United States v. Prewitt, 34 F.3d 436 (7th Cir.
1994). Those courts have determined that the “plain language” of the rule, specifically the use of
“validity” and “claim,” show that the drafters of the rule intended for it to apply solely in a civil
context. Bailey, 327 F.3d at 1145. The underlying policy considerations of those circuits
allowing admission of civil settlements in criminal proceedings is best summarized by the
Second Circuit:
               Rule 408 is premised on the idea that encouraging settlement of civil
        claims justifies excluding otherwise probative evidence from civil lawsuits.
        However, encouraging settlement does not justify excluding probative and
        otherwise admissible evidence in criminal prosecutions. The public interest in the
        disclosure and prosecution of crime is surely greater than the public interest in the
        settlement of civil disputes. It follows that since nothing in the Rule specifically
        prohibits receiving in evidence the admissions and statements made at a
        conference to settle claims of private parties, they are admissible in any criminal
        proceeding.
Manko, 87 F.3d at 54 (quoting United States v. Gonzalez, 748 F.2d 74, 78 (2d Cir. 1984)). Other
states with identical versions of Rule 408, Washington and Utah, have addressed this issue and
agree with the above listed circuits. See State v. O’Connor, 119 P.3d 806, 812 (Wash. 2005) and
State v. Mead, 27 P.3d 1115, 1128 (Utah 2001) (finding the plain language of the rule to be
ambiguous, therefore turning to federal cases and finding Manko persuasive).
        On the other hand, the Fifth, Tenth, Eleventh, and D.C. Circuits, and the State of Hawaii
have concluded that Rule 408 applies to both civil and criminal proceedings. See United States v.
Hays, 872 F.2d 582, 589 (5th Cir. 1989); Bailey, 327 F.3d at 1143-44; United States v. Arias, 431
F.3d 1327, 1336-38 (11th Cir. 2005); United States v. Davis, 596 F.3d 852, 860-61 (D.C. Cir.
2010); State v. Gano, 988 P.2d 1153, 1160 (Haw. 1999). Those courts look to the plain language
of the rule and concluded that (1) nothing in the rule precludes application in criminal
proceedings; and (2) to construe the rule to apply only in civil settings would render the final
sentence of the rule unnecessary because “there would be no need to carve out an exception for
certain circumstances in criminal cases.” Bailey, 327 F.3d at 1146. Additionally, those courts
turn to F.R.E. 1101(b) which specifies that the rules of evidence apply in “civil cases and
proceedings” and “criminal cases and proceedings.” Finally, those circuits state their policy
concerns if the rule did not apply in criminal cases: “It does not tax the imagination to envision

                                                 10
the juror who retires to deliberate with the notion that if the defendants had done nothing wrong,
they would not have paid the money back.” Hays, 872 F.2d at 589; see also Gano, 988 P.2d at
1159 (stating “we believe that the potential impact of evidence regarding a civil settlement
agreement is even more profound in criminal proceedings than it is in civil proceedings”). 4
        We agree with the reasoning articulated by the Fifth, Tenth, Eleventh, and D.C. Circuits,
and the State of Hawaii and are convinced by the plain language of the rule that Idaho Rule of
Evidence applies in both criminal and civil cases. First, nothing in the rule precludes its
application in criminal cases. To the contrary, the final sentence which states, “This rule does
not require the exclusion if the evidence is offered for another purpose, such as . . . proving an
effort to obstruct a criminal investigation or prosecution” indicates that this rule generally applies
to criminal cases. The drafters of the rule would not have carved out an exception allowing use
of a settlement agreement to prove obstruction in a criminal case unless the rule otherwise
precluded such admission in the criminal context. Moreover, although the State points to the
language of the rule and argues that the “rule’s text itself suggests that it should only apply to
civil proceedings,” the terms are not solely applicable in the civil context. To the contrary, the
Idaho appellate courts and the Idaho bar, in general, frequently refer to a defendant’s guilt in the
criminal context as criminal liability. State v. Bishop, 146 Idaho 804, 813, 203 P.3d 1203, 1212
(2009); State v. Nastoff, 124 Idaho 667, 669-70, 862 P.3d 1089, 1091-92 (Ct. App. 1993).
Finally at the time of Munson’s trial, I.R.E. 101 defined the scope of the Idaho Rules of
Evidence as follows: “These rules govern all actions, cases and proceedings in the courts of the
State of Idaho and all actions, cases and proceedings to which rules of evidence are applicable,
except as hereinafter provided.” Because the Idaho Rules of Evidence generally govern all
proceedings, I.R.E. 408 applies in criminal cases.



4
       Federal Rule of Evidence 408 was amended in 2006 to allow a party to admit evidence of
conduct or statements that are made during compromise negotiations only “when offered in a
criminal case and when the negotiations related to a claim by a public office in the exercise of its
regulatory, investigatory, or enforcement authority” (i.e. conduct or statements made during
negotiations with the government can be used against a defendant in a criminal trial).
F.R.E. 408. It is noteworthy that the current federal rule precludes evidence of the settlement
agreement itself in both civil and criminal cases, regardless if the civil negotiation involved a
government entity. See F.R.E. 408. The 2006 amendment to the federal rule effectively ended
the debate on the application of F.R.E. 408 to criminal proceedings.


                                                 11
         In addition to the plain language of the rule, we find it persuasive that the other Idaho
Rules of Evidence in the 400 series generally apply in the criminal context. In this case, the
district court allowed the State to present evidence of the settlement agreement under
I.R.E. 404(b). However, neither party contests that if I.R.E. 408, the more specific rule, applies
in criminal proceedings then it precludes admission of the settlement agreement. See e.g.,
Fragnella v. Petrovich, 153 Idaho 266, 275, 261 P.3d 103, 112 (2012) (finding that a general
catch all rule allowing a party to admit evidence of a police report cannot be used to avoid the
specific rule that exclusively precludes the use of police reports). Because we conclude that
I.R.E. 408 applies in both civil and criminal proceedings, the district court erred in allowing the
State to admit evidence of the settlement agreement. Thus, we turn our analysis to harmless
error.
         2.     Harmless error
         The State argues that, even if the civil settlement evidence was inadmissible, admission
of the evidence was harmless beyond a reasonable doubt. In response, Munson argues that the
State cannot meet its burden of showing that the evidence was harmless beyond a reasonable
doubt.
         Error is not reversible unless it is prejudicial. State v. Stell, 162 Idaho 827, 830, 405 P.3d
612, 615 (Ct. App. 2017). With limited exceptions, even constitutional error is not necessarily
prejudicial error. Id. Thus, we examine whether the alleged error complained of in the present
case was harmless. See State v. Lopez, 141 Idaho 575, 578, 114 P.3d 133, 136 (Ct. App. 2005).
A defendant appealing from an objected-to, nonconstitutionally based error shall have the duty to
establish that such an error occurred, at which point the State shall have the burden of
demonstrating that the error is harmless beyond a reasonable doubt. State v. Montgomery, 163
Idaho 40, 46, 408 P.3d 38, 44 (2017). In other words, the error is harmless if the Court finds that
the result would be the same without the error. Id.
         Here, the State argues that it presented overwhelming evidence that Munson committed
grand theft.    The State points to State’s Exhibit 10 (which is the computer screenshot of
Munson’s electronic payroll file that showed that Munson’s deductions had been turned off in
2007 and 2008) and to State’s Exhibit 6 (which is Munson’s payroll register that showed that
Munson’s deductions were not being taken out of her checks). The State argues that these
exhibits show that Munson’s payroll advances were not being deducted and she was not paying

                                                  12
her portion of the 401K and medical benefits. The State compares Exhibit 6 with State’s Exhibit
2 (which is Bundgard’s payroll register) and argues that Munson should have noticed that a
normal payroll register, like Exhibit 2, displays the deductions and hers did not. In addition, the
State points to the fact that Munson was a certified public accountant and the Chief Financial
Officer of Pioneer Holding and should have noticed that she was being overpaid month after
month.
            We agree with the State that the exhibits listed above, the fact that Munson was a CPA,
and the amount of money stolen may infer that Munson had the requisite criminal intent to be
found guilty of the charges. However, we conclude that admission of the settlement agreement
was not harmless. At trial, Munson did not dispute that she received certain payroll advances
that were not deducted at the end of the month, as charged in Count I; she did not dispute that
she did not contribute to her healthcare benefits and her employer-sponsored 401K, as charged in
Count II; and she did not dispute that she received the three bonus checks at issue in Count III.
The only question was whether Munson had the requisite criminal intent (i.e. whether Munson’s
taking was wrongful). See I.C. 18-2403(1).
            In this case, the district court allowed the State to present evidence of the agreement
through direct questioning during its case-in-chief and during closing arguments to show that the
settlement agreement was evidence of Munson’s consciousness of guilt. As Munson points out
in her briefing, Terry Copple, an attorney, testified at trial on behalf of the State regarding the
legal services that he provided to Pioneer Title with respect to Munson. Copple was questioned
extensively regarding Munson’s reaction when she was first confronted by Pioneer Title in
relation to the pay irregularities and her instant agreement to repay whatever she was wrongfully
paid. In addition, Copple gave a detailed account of the settlement negotiations. This testimony
included but was not limited to: (1) the process of negotiating the amount that Munson would
repay; (2) the terms that Munson wanted included in the agreement throughout the process; (3)
the items that Munson would use to repay; and (4) Munson’s emotions throughout the
negotiations. In addition, in its written closing argument, the State pointed to the settlement
agreement and argued exhaustively that the agreement proved that Munson intended to steal
money from Pioneer Title because she would not have paid the money back if she did intend to
steal it.



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       Although the State points to evidence outside of the settlement agreement which could
infer Munson’s criminal intent, the settlement agreement was admitted in error and used
explicitly to prove Munson’s criminal intent. Munson’s criminal intent was the only contested
element at trial. Because of that, we cannot say that the result of the trial would have been the
same absent admission of the agreement. Accordingly, admission of the settlement agreement
was not harmless error. Therefore, we need not address Munson’s contention that the district
court erred in denying her motion to use the polygraph examination to rebut admission of the
settlement agreement. Because we vacate Munson’s judgment of conviction as to all counts and
remand the case to the district court for a new trial, we need not address whether the district
court erred in imposing Munson’s sentence.
                                                 III.
                                          CONCLUSION
       The district court did not err in admitting evidence of the electronic payroll file.
However, the district court erred in admitting the civil settlement agreement under I.R.E. 408 and
the error was not harmless. Therefore, we vacate Munson’s judgment of conviction and sentence
and remand the case to the district court for a new trial.
       Chief Judge HUSKEY and Judge BRAILSFORD CONCUR.




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