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IN THE SUPREME COURT OF THE STATE OF IDAHO

Docket No. 43124

STATE OF IDAHO,

 Plaintiff-Respondent,

v.

CHARLES ANTHONY CAPONE,

 Defendant-Appellant.

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Boise, September 2017 Term

Filed: September 6, 2018

Karel A. Lehrman, Clerk

Appeal from the District Court of the Second Judicial District of the State of 

Idaho, Latah County. Hon. Carl B. Kerrick, District Judge.

The judgment and the order of the district court are affirmed.

Silvey Law Office, Ltd., Boise, for appellant. 

Honorable Lawrence G. Wasden, Attorney General, Boise, for respondent. 

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ON THE BRIEFS

HORTON, Justice.

This is an appeal from felony convictions for first degree murder, failure to notify 

coroner or law enforcement of death, and conspiracy to commit failure to notify coroner or law 

enforcement of death. The charges were brought against Charles Capone following the 

disappearance of Rachael Anderson in April of 2010. Capone was convicted of all charges 

following a sixteen-day jury trial. In this appeal, Capone challenges the sufficiency of the 

evidence to support his conviction and asserts that the district court erred in the admission of 

certain evidence and by denying his motion for new trial. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Capone and Anderson were married in September of 2009. The two separated that

December and Anderson filed for divorce. Anderson began receiving harassing phone calls

following the separation and her car was vandalized multiple times. At the time, Capone owned 

Palouse Multiple Services, a repair shop in Moscow, Idaho. Capone repaired Anderson’s car 
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after it was vandalized. Capone was working on Anderson’s car on Friday, April 16, 2010. At the 

time, Anderson was driving a white Yukon that belonged to a friend of Capone. 

Anderson drove the Yukon to Capone’s shop to pick up her car. Anderson became upset 

when she learned her car was not ready. Anderson went to run some errands while Capone 

continued to work on the car. Anderson bought some beer with Capone’s debit card and then, 

according to Capone, ran off with a man named Vince. No one saw or heard from Anderson after 

her visit with Capone. Anderson was reported missing after she failed to show up for work the 

following Monday.

On April 20, 2010, Capone was interviewed by the police. During this interview, Capone 

admitted that he had made the harassing phone calls to Anderson’s phone. The following day,

the Anderson family’s search for her led to their discovery of the Yukon in Lewiston. 

Anderson’s purse was inside the vehicle. 

On May 6, 2010, Capone was arrested for a federal firearm violation unrelated to

Anderson’s disappearance. While incarcerated on this charge, Capone made several 

incriminating statements to cellmates Brent Glass and Joshua Voss about his role in Anderson’s 

disappearance.

After an investigation that lasted for three years, on May 1, 2013, Capone and David 

Stone were charged with first degree murder and related crimes in connection with Anderson’s 

disappearance. Following a preliminary hearing where both Capone and Stone were bound over 

on all charges, Stone entered into a plea agreement with the State in which he agreed to testify 

against Capone in exchange for dismissal of the murder charge against him.

Before trial, the State filed a motion in limine regarding several evidentiary issues. The 

State sought to prevent Capone from introducing evidence of prior felony convictions to impeach 

the testimony of Glass and Voss. Pursuant to Idaho Rule of Evidence 404(b), the State also gave 

notice of its intent to use evidence of a past strangulation attempt and federal firearm crimes by

Capone. After hearing argument, the district court ruled that Glass and Voss’s prior felony 

convictions for burglary were not relevant to their credibility and reserved its ruling on the 

admissibility of the 404(b) evidence until trial. 

At trial, the State relied heavily on Stone’s testimony. Stone testified that he was at 

Capone’s shop on April 16, 2010. Capone went outside to talk with Anderson. Stone heard a 

noise and went outside to find Capone strangling Anderson. Anderson was still moving and 
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Stone asked Capone what he was doing. Capone instructed Stone to get a tarp. Stone went inside 

and searched for a tarp. When he came back out, Anderson was dead. Stone testified that he and 

Capone wrapped Anderson’s body in the tarp and a chain and drove to Lewiston, where they 

threw her body into the river from a bridge.

The jury found Capone guilty of all charges. Following the verdict, Capone learned of a 

statement Stone made to Tyler Byers while the two were cellmates in July of 2013. Stone told 

Byers that they would not find Anderson’s body in the river because she was not in the river. 

Capone filed a motion for a new trial based on this newly discovered information. After hearing 

the motion, the district court found that the new evidence did not merit a new trial as it was 

merely impeachment evidence and likely would not produce an acquittal. Capone timely 

appealed his conviction and the denial of his motion for a new trial.

II. STANDARD OF REVIEW

“This Court exercises free review over whether a jury was given proper instructions.” 

State v. Severson, 147 Idaho 694, 710, 215 P.3d 414, 430 (2009). “Generally Idaho’s appellate 

courts will not consider error not preserved for appeal through an objection at trial.” State v. 

Perry, 150 Idaho 209, 224, 245 P.3d 961, 976 (2010). 

[W]hen an error has not been properly preserved for appeal through objection at 

trial, the appellate court’s authority to remedy that error is strictly circumscribed 

to cases where the error results in the defendant being deprived of his or her 

Fourteenth Amendment due process right to a fair trial in a fair tribunal.

Id. (citation omitted).

“Whether evidence is relevant is an issue of law, which we review de novo.” State v. 

Russo, 157 Idaho 299, 308, 336 P.3d 232, 241 (2014). “The denial of a motion for a new trial is 

reviewed for an abuse of discretion.” State v. Stevens, 146 Idaho 139, 144, 191 P.3d 217, 222 

(2008).

III. ANALYSIS

Capone advances several arguments on appeal. Capone first argues that there was 

insufficient evidence to corroborate Stone’s accomplice testimony as required by Idaho Code 

section 19-2117. Next, Capone argues that the failure to instruct the jury regarding the 

corroboration requirement constitutes fundamental error. Capone next asserts that the district 

court erred by admitting 404(b) evidence of Capone’s prior convictions and an alleged physical 

altercation between Capone and Anderson. Capone also argues that the district court erred when 
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it found Glass and Voss’s felony burglary convictions were not relevant to their credibility. Even 

if the individual errors are determined to be harmless, Capone contends that the doctrine of 

cumulative error requires reversal. Finally, Capone contends that the district court erred when it 

denied his motion for a new trial. These arguments will be addressed in turn.

A. There was sufficient evidence to corroborate Stone’s testimony.

Capone argues that Stone was an accomplice to the crimes of murder and failure to notify 

coroner or law enforcement of death and thus, Idaho law requires that his testimony be 

corroborated. The State concedes that Stone was an accomplice to the crime of failure to notify 

coroner or law enforcement of death and conspiracy to commit that crime, but contends that

Stone was not an accomplice to the murder. We will first consider whether Stone was an 

accomplice to murder, then consider whether there was sufficient corroborating evidence for the 

crimes where Stone was an accomplice.

1. Stone was not an accomplice to the murder.

Capone argues that Stone was an accomplice to the murder because while Anderson was 

still alive Capone instructed him to go and get a tarp and Stone followed that command. The 

State argues that Stone was merely a bystander and did not take any action that would make him 

an accomplice to murder. The State is correct.

Idaho Code section 19-2117 states in pertinent part, “[a] conviction cannot be had on the 

testimony of an accomplice, unless he is corroborated by other evidence, which in itself, and 

without the aid of the testimony of the accomplice, tends to connect the defendant with the 

commission of the offense . . . . ” I.C. § 19-2117. Accomplice is defined by Idaho Criminal Jury 

Instruction 313 as:

a person who intends to promote or assist in the commission of a crime and who 

either directly commits the acts constituting the crime or who, before or during its 

commission, aids, assists, facilitates, promotes, encourages, counsels, solicits, 

invites, helps or hires another to commit the crime. Mere presence at, 

acquiescence in, or silent consent to, the planning or commission of a crime is not 

[in the absence of a duty to act] sufficient to make one an accomplice.

“Where the evidence raises a genuine issue as to whether a witness is an accomplice, the district 

court must submit the issue to the jury for resolution and instruct the jury accordingly.” 

Matthews v. State, 136 Idaho 46, 50, 28 P.3d 387, 391 (Ct. App. 2001); ICJI 313. “However, if it 

is clear from the evidence that a witness is an accomplice of the defendant, the trial court should 

decide that the witness is an accomplice as a matter of law and instruct the jury accordingly.” Id.
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“Mere presence at the place of a crime or acquiescence in its commission, without 

participation, does not constitute a crime.” State v. Scroggins, 110 Idaho 380, 386, 716 P.2d 

1152, 1158 (1985). “Some aiding, abetting or actual encouragement on the part of the person 

charged is essential to make that person an accomplice.” Id. “To be an aider and abettor one must 

share the criminal intent of the principal; there must be a community of purpose in the unlawful 

undertaking.” Id. 

Here, Stone testified that he was in Capone’s shop when he heard a noise outside. Stone

walked out of the shop and witnessed Capone strangling Anderson. Stone asked Capone what he 

was doing at which point Capone told him to get a tarp. When Stone left, Anderson was still 

moving and when he came back she was no longer moving. There is nothing in the record that 

suggests that Stone did anything to aid, abet, or encourage Capone to commit murder. Because

Stone was not an accomplice to the murder, Stone’s testimony concerning the murder was not 

required to be corroborated.

2. There was sufficient evidence presented at trial to corroborate Stone’s 

testimony for failure to notify coroner or law enforcement of death and 

conspiracy to commit failure to notify coroner or law enforcement of death.

Capone next argues that there was not sufficient corroborating evidence of Stone’s 

testimony to support his convictions for failure to notify coroner or law enforcement of death and 

conspiracy to commit failure to notify coroner or law enforcement of death. In support of this 

argument, Capone points to evidence in the record which appears to contradict Stone’s 

testimony. 

As previously noted, Idaho Code section 19-2117 requires accomplice testimony to be 

corroborated. “The corroborating evidence offered need only connect the defendant with the 

crime.” State v. Aragon, 107 Idaho 358, 364, 690 P.2d 293, 299 (1984). “While the corroborating 

evidence must be independent of the accomplice’s testimony . . . it need not be sufficient in and 

of itself to convict the defendant.” Id. “Corroborating testimony may be slight and need only go 

to one material fact.” Id. “[C]orroboration may be entirely circumstantial.” State v. Swenor, 96 

Idaho 327, 329, 528 P.2d 671, 673 (1974). “Corroboration may be furnished by a defendant’s 

own words or conduct.” Id. 

Stone was an accomplice to the crimes of failure to notify coroner or law enforcement of 

death and conspiracy to commit that crime. Stone testified that after Capone killed Anderson, he 

assisted in rolling Anderson in a tarp, wrapping that tarp with a chain, and then throwing 
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Anderson’s body from a bridge. A shop owner in Moscow testified that Capone purchased a new 

tarp the following day. Evidence was admitted that Capone told Voss that Anderson had gone 

away before and always came back, but this time she was not coming back. Capone also told 

Glass that Anderson was not doing anything “but pushing up daisies,” and that he buried her so 

deep, “they’ll never find her.” We hold that this was sufficient evidence to corroborate Stone’s 

testimony regarding the crimes of failure to notify coroner or law enforcement of death and 

conspiracy to commit that crime.

B. Because there was sufficient evidence to corroborate Stone’s testimony for crimes in 

which he was an accomplice, we do not consider whether the district court erred in 

failing to give a corroboration instruction.

Capone next argues that the district court erred when it failed to give a jury instruction 

regarding corroboration. Capone did not object to the failure to give a corroboration instruction 

at trial. The State argues that even if the district court erred in failing to give a corroboration 

instruction that such an error does not rise to the level of fundamental error.

As discussed above, there was sufficient evidence presented at trial to corroborate 

Stone’s testimony. Because there is sufficient evidence to corroborate Stone’s testimony, any 

error that may have occurred by failing to give a corroboration instruction is harmless. In State v. 

Scroggins, 110 Idaho 380, 386, 716 P.2d 1152, 1158 (1985), the defendant was convicted based 

largely on testimony from an accomplice. Id. Affirming the defendant’s conviction, we noted 

that the accomplice’s testimony was corroborated. Id. “Therefore, the district court’s failure to 

give the accomplice instruction, even if it were erroneous, was harmless and hence does not give 

cause for reversal.” Id. Because there was sufficient evidence to corroborate Stone’s testimony, 

the failure to give the accomplice instruction was harmless error.

C. Evidence of the attempted strangulation should not have been admitted.

Capone next argues that the district court erred when it admitted evidence of his past 

crimes or wrongs. Capone argues that evidence of a past strangulation attempt and that he was 

not allowed to have firearms due to past felony convictions was improperly admitted. The State 

responds that although these issues were addressed during a motion in limine, the district court 

reserved its final ruling for trial and because Capone did not object to the admission of this 

evidence at trial he did not properly preserve the issues for appeal. Alternatively, the State argues 

that this evidence was admissible under Idaho Rule of Evidence 404(b) to show motive. 
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Idaho Rule of Evidence 404(b)1 provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character 

of a person in order to show that the person acted in conformity therewith. It may, 

however, be admissible for other purposes, such as proof of motive, opportunity, 

intent, preparation, plan, knowledge, identity, or absence of mistake or 

accident....”

“The admissibility of evidence offered pursuant to Rule 404(b) requires a two-step analysis.” 

Russo, 157 Idaho at 308, 336 P.3d at 241. “First, the evidence ‘must be sufficiently established 

as fact and relevant as a matter of law to a material and disputed issue other than the character or 

criminal propensity of the defendant’ ” Id. (quoting State v. Pepcorn, 152 Idaho 678, 688, 273 

P.3d 1271, 1281 (2012)). “Second, the court must determine pursuant to Rule 403 that ‘the 

probative value of the evidence is not substantially outweighed by the danger of unfair 

prejudice.’ ” Id. (quoting Pepcorn, 152 Idaho at 689, 273 P.3d at 1282).

Capone alleges that evidence of an attempted strangulation in December 2009, as well as 

evidence of his inability to possess firearms due to past felony convictions was used as 

inadmissible propensity evidence and did not fit within any of the exceptions listed in Idaho Rule 

of Evidence 404(b). These two categories of evidence will be considered separately below.

1. Admission of the prior attempted strangulation was harmless error.

Capone argues that the district court erred when it allowed Jennifer Norberg to testify 

regarding his earlier attempted strangulation of Anderson. The State argues that the evidence was 

relevant to his motive to kill Anderson. Capone is correct that the district court erred when it 

admitted this evidence, however this error was harmless.

“Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a 

person in order to show that the person acted in conformity therewith.” I.R.E. 404(b). However, 

the evidence may be admitted if it is relevant to motive. I.R.E. 404(b). “Whether evidence is 

relevant is an issue we review de novo.” State v. Russo, 157 Idaho 299, 308, 336 P.3d 232, 241 

(2014). “Motive is a well-accepted method of proving the ultimate facts necessary to establish 

the commission of a crime, without reliance upon an impermissible inference from bad 

character.” Id. (quoting Am. Jur. 2d Evidence § 439 (2008)). “Evidence of motive is relevant 

‘when the existence of a motive is a circumstance tending to make it more probable that the 

person in question did the act’ ” Id. (quoting Am. Jur. 2d Evidence § 439 (2008)).

 1 We note that the rule was amended, effective July 1, 2018. We will refer to the version in effect at the time of 

Capone’s trial. 
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Here, the State asserts that the evidence of the attempted strangulation was relevant to 

show the reason for the pending divorce. While the divorce may be relevant to Capone’s motive 

to kill Anderson, the underlying cause of that divorce is not relevant. The district court erred 

when it found that Norberg’s testimony was relevant to Capone’s motive. 

The State argues that even if the district court erred, the error was harmless because 

testimony of strangulation was admitted without objection through other witnesses. The State is 

correct.

“In harmless error review the burden of persuasion is on the State to demonstrate that the 

constitutional violation did not affect the outcome of the case.” Perry, 150 Idaho at 225, 245 

P.3d at 977. In this case, Capone made a number of statements to Glass and Voss about 

Anderson not coming back and how she was pushing up daisies. Specifically Capone told Glass 

that the pending strangulation charge was no big deal and that he barely choked her. This

statement combined with the other evidence presented at trial would have led to Capone’s 

conviction without Norberg’s testimony regarding the earlier attempted strangulation. As such,

we are convinced beyond a reasonable doubt that any error committed by the district court in 

admitting this evidence did not contribute to the verdicts. Id. at 227, 245 P.3d at 979.

2. Capone failed to preserve his objection to evidence of the federal firearms 

charge for appeal.

Capone contends that the district court erred when it allowed testimony during trial 

relating to his charge for possessing a firearm as a convicted felon. Capone argues that the 

district court made a conclusive ruling in response to the motion in limine that this evidence was 

not admissible and then erred when it allowed this evidence later. The State asserts that the 

ruling in the motion in limine was specifically limited to events around the May 6, 2010, arrest 

and that Capone failed to preserve this issue by not objecting to the admittance of this evidence 

during trial. 

“Where no advance ruling has been obtained, counsel must continue to object as the 

evidence is presented.” State v. Hester, 114 Idaho 688, 700, 760 P.2d 27, 39 (1988). “We have 

said before that when a trial judge elects to hear the foundation for the evidence instead of ruling 

definitively on a motion in limine, counsel opposing the evidence must continue to object as the 

evidence is presented.” Schwan’s Sales Enterprises, Inc. v. Idaho Transp. Dept., 142 Idaho 826, 

833, 136 P.3d 297, 304 (2006).
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Here, the district court did not rule on the admissibility of evidence relating to Capone’s 

federal firearms charge. Capone asserts that the ruling regarding his May 6, 2010, arrest covers

all evidence related to his federal firearms charge. The district court ruled, “[t]he defense motion 

to exclude statements made to the police on May 6, 2010 in their case in chief is granted.” We 

are unable to conclude that this holding barred the State from presenting evidence of the federal 

firearms charge. Although Capone objected to some testimony regarding the firearms charge, he 

did not object when Glass testified about Capone’s inability to possess firearms. He therefore 

failed to preserve this issue for appeal. 

D. Glass and Voss’s burglary convictions were relevant to their credibility.

The State’s motion in limine seeking to prevent Capone from using Glass and Voss’s 

former burglary convictions to impeach their credibility contended that such convictions were 

not relevant to their credibility. After hearing the motion, the district court agreed. Capone 

argues that the district court erred when it held that the convictions were not relevant. Capone is 

correct that the district court erred, however, we hold that the error was harmless.

Idaho Rule of Evidence 609 allows prior felony convictions to be used to impeach a 

witness’s credibility when the conviction is relevant to credibility and the probative value of the 

evidence does not outweigh the prejudicial effect. I.R.E. 609. “Evidence of a conviction under 

this rule is not admissible if a period of more than ten years has elapsed since the date of the 

conviction or of the release of the witness from the confinement imposed for that conviction, 

whichever is the later date...” unless the court determines that the probative value substantially 

outweighs the prejudicial effect. I.R.E. 609(b).2 In order to determine if evidence of a prior 

conviction should be admitted under Idaho Rule of Evidence 609, courts apply a two-step 

approach: “(1) whether the evidence is relevant to the credibility of the witness; and (2) whether 

the probative value of the evidence outweighs the unfair prejudicial effect to the party offering 

the witness.” State v. Bush, 131 Idaho 22, 30, 951 P.2d 1249, 1257 (1997). Here, the district 

court found that the burglary convictions were not relevant to the credibility of the witnesses and 

did not reach the question of prejudice.

“Whether evidence is relevant is an issue of law, which we review de novo.” Russo, 157 

Idaho at 308, 336 P.3d at 241. “The determination whether evidence of a particular felony 

 2 As with Rule 404(b), this rule was amended effective July 1, 2018. We will refer to the version in effect at the time 

of Capone’s trial.
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conviction is relevant to credibility depends on the particular facts and circumstances of each 

case and must therefore be decided on a case-by-case basis.” Bush, 131 Idaho at 31, 951 P.2d at 

1258. In State v. Ybarra, 102 Idaho 573, 634 P.2d 435 (1981), this Court identified three 

categories of felonies and discussed the relevancy of each category to credibility. The first 

category contains crimes “such as perjury, [that] are intimately connected with” credibility. 

Ybarra, 102 Idaho at 580, 634 P.2d at 442. Burglary fits into the second category with crimes 

such as robbery. Id. Crimes in this second category are, “somewhat less relevant” to credibility. 

Id. The third category contains, “[a]cts of violence” and these crimes “generally have little or no 

direct bearing on honesty and veracity.” Id. at 581, 634 P.2d at 443.

In Ybarra, the district court ruled that the State could use a prior felony conviction for 

burglary to impeach the defendant should he choose to testify. Id. at 580, 634 P.2d at 442. Ybarra 

appealed, arguing that burglary was not relevant to credibility. Id. This Court stated, “[a]s to 

Ybarra’s argument that burglary is not relevant to credibility, the law is generally against him.” 

Id. Affirming the district court’s decision, this Court stated:

On the other hand robbery, larceny, and burglary, while not showing a propensity 

to falsify, do disclose a disregard for the rights of others which might reasonably 

be expected to express itself in giving false testimony whenever it would be to the 

advantage of the witness. If the witness had no compunction against stealing 

another’s property or taking it away from him by physical threat or force, it is 

hard to see why he would hesitate to obtain an advantage for himself or friend in a 

trial by giving false testimony. Furthermore, such criminal acts, although 

evidenced by a single conviction, may represent such a marked break from 

sanctioned conduct that it affords a reasonable basis of future prediction upon 

credibility...

Id. at 581, 634 P.2d at 443(quoting Ladd, Credibility Test Current Trends, 89 Univ. Pa. L. Rev. 

166 (1940)).

Here, the district court did not explain why the burglary convictions were not relevant to 

credibility. We hold that the district court erred when it determined that Glass and Voss’s prior 

felony convictions were not relevant to credibility. Although the district court erred, such error 

was harmless. Both Glass and Voss testified that they were incarcerated at the time Capone made 

incriminating statements to them. In light of the jury’s awareness of their incarceration and 

Stone’s testimony that he saw Capone commit the murder, we are convinced beyond a 

reasonable doubt that the error did not contribute to the verdicts.

E. The doctrine of cumulative error does not require reversal.
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Capone asserts that even if there is not any one error that requires reversal, the 

combination of errors during trial deprived him of his right to due process and require reversal 

under the doctrine of cumulative error. 

“The cumulative error doctrine refers to an accumulation of irregularities, each of which 

by itself might be harmless, but when aggregated, show the absence of a fair trial in 

contravention of the defendant’s constitutional right to due process.” Dunlap v. State, 141 Idaho 

50, 65–66, 106 P.3d 376, 391–92 (2004) (quoting State v. Sheahan, 139 Idaho 267, 286, 77 P.3d 

956, 975 (2003). “In order to find cumulative error, this Court must first conclude that there is 

merit to more than one of the alleged errors and then conclude that these errors when aggregated, 

denied the defendant a fair trial.” Id. “The presence of errors, however, does not by itself require 

the reversal of a conviction, since under due process a defendant is entitled to a fair trial, not an 

error-free trial.” State v. Parker, 157 Idaho 132, 149, 334 P.3d 806, 823 (2014).

The State presented powerful evidence of Capone’s guilt. Stone testified as to witnessing 

the murder, and Glass and Voss testified as to statements that Capone made suggesting his 

involvement in Anderson’s murder. The jury heard extensive evidence regarding the 

deterioration of Anderson and Capone’s relationship. We are convinced beyond a reasonable 

doubt that the two errors that we have determined the trial court committed did not contribute to 

the verdicts. State v. Perry, 150 Idaho 209, 227, 245 P.3d 961, 979 (2010)

F. The district court did not abuse its discretion when it denied Capone’s motion for new 

trial based on newly discovered evidence.

Following Capone’s conviction, new evidence was discovered regarding a statement 

Stone made prior to trial. In March 2015, Tyler Byer was arrested for DUI. While in jail, Byer 

told police about a statement Stone had made while Stone and Byer were housed in the same jail 

cell in July of 2013. Stone told Byer that they would never find Anderson’s body in the river 

because her body was not in the river. After Capone learned of this new evidence, he moved for 

a new trial. The district court denied the motion finding that the newly discovered evidence was 

not material and could have been used only for impeachment purposes. The district court 

reasoned that, because the new evidence was hearsay, it could only have been used to impeach 

Stone’s testimony. Capone argues that Byer’s testimony could have been introduced as 

substantive evidence under the party-opponent exception to the hearsay rule. 
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“Newly discovered evidence warrants a new trial only if the defendant demonstrates: (1) 

the evidence is newly discovered and was unknown to the defendant at the time of trial; (2) the 

evidence is material, not merely cumulative or impeaching; (3) it will probably produce an 

acquittal; and (4) failure to learn of the evidence was not due to a lack of diligence on the part of 

the defendant.” State v. Ellington, 151 Idaho 53, 72, 253 P.3d 727, 746 (2011) (quoting State v. 

Stevens, 146 Idaho 139, 144, 191 P.3d 217, 222 (2008)). “Motions for a new trial based on newly 

discovered evidence are disfavored and should be granted with caution, reflecting the importance 

accorded to considerations of repose, regularity of decision making, and conservation of scarce 

judicial resources.” Stevens, 146 Idaho at 144, 191 P.3d at 222. “This Court reviews a denial of a 

motion for new trial for an abuse of discretion.” Ellington, 151 Idaho at 72, 253 P.3d at 746.

In this case, the district court found that the first and the fourth prongs of the test were 

met by the defendant. However, the district court found that the evidence could be used for 

impeachment only, and that the new evidence likely would not produce an acquittal. 

Capone argues that Stone’s testimony was admissible under the party-opponent exception 

to the hearsay rule found in Idaho Rule of Evidence 801(d)(2). Capone is mistaken. Stone was 

not a party to the case; he was merely a witness. Because Stone was not a party to the action 

which pitted the State against Capone, his statement to Byer was not admissible as an admission 

of a party-opponent. Because Stone’s prior statement could not be brought in as substantive 

evidence, the district court did not abuse its discretion when it held that Capone failed to 

demonstrate that the new evidence was material and not merely cumulative or impeaching.

We can find no error in the district court’s determination that Capone also failed to 

demonstrate that the new evidence would probably have produced an acquittal. Capone spent a 

full day impeaching Stone with inconsistent statements he had made to police before November 

of 2013. At trial, Stone repeatedly stated that he had been living a lie and consistently lied to 

others about Anderson’s disappearance before November 2013 when he decided to tell the police 

the truth. Stone’s statement to Byer was made during the time in which Stone admitted to having 

lied about what happened to Anderson. For these reasons, we hold that the district court did not 

abuse its discretion when it denied Capone’s motion for a new trial.

IV. CONCLUSION

We affirm the judgment of the district court and its order denying Capone’s motion for 

new trial.
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Chief Justice BURDICK, Justice BRODY and Justice Pro Tem RYAN CONCUR. 

JONES, J. sat, but did not participate due to his untimely death.