1 IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 45266

STATE OF IDAHO ,
Plaintiff

- Respondent ,

v.

CYNTHIA MARIE MUNSON ,
Defendant

- Appellant

. ) ) ) ) ) ) ) ) ) ) Filed: February 19, 2020
Karel A. Lehrman, Clerk

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 r emanded

. 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 fo r various Pioneer Title c ompanies. For ease of reference, we refer to all of the Pioneer entities as Pioneer Title.2 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 o f 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

. Af ter two months of

neg otiations, Pioneer T itle and Munson reached a civil settlemen t agreement (settlement agreement) in which Pioneer Title agreed to waive any civil claims against Munson. In

ex change 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 Mun son failed to pay any portion of her healthcare benefits and failed to contribute to her employer

- sponsored 4 01K. In Count III, grand th eft (I.C. § § 18

- 2403(1),

- 240 7(1)(b),

- 2409), the State alleged that Munson wrote discretionary bonus checks to herself in amounts not authorized by Pioneer Title. I n Count IV, forg ery (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 CE O ’s knowledge or permission. The parties f iled 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 Rule s of Evidence 401 and 408. The State filed a notice o f 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, th e State filed a mo tion 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
examinati on to rebut any evidence or testimony presented by the State to show consciousness of3 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 p olygraph and denied the motion. Munso n waived her right to a jury trial. Aft er 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 busin ess 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

. S pecific ally , Munson
contends that State’s E xhibit 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 evidentia ry rulings, this C ourt applies an abuse of
discretion standard. State v. Jones , 160 Idaho 449, 450, 375 P.3d 279, 280 (201 6). Whe n 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 su ch 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:4 (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 oppo nent 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 o f C. Truchot and T. Hedin

. 2
Truchot replace d Munson and is Pioneer Title’s c urrent C hief F inancial O fficer. Hedin was a former employee of Pioneer Title in the human resource and payroll department and reported to
Munson fo r 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 m aster 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 appea r 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 s ystem, 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 advance s , dental, medical, and 401K deductions had been turned off in 2007 and 2008.5 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. H edin 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.
He din explained that the screenshot was true and accurat e 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 susta ined 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 t hings 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?6 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 alte red 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, on ly individuals with a password. She explained that “only people who were trained and knowledgeable in the payr oll system” had access to it whi ch 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 th at 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 trustworth iness 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 Stat e’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 2 014. Second, Pioneer Title kept payroll file s 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 that7 “Pioneer Title undoubtedly maintains its electronic payroll file during the co urse 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 transc ript 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 Ex hibit 10’s

a dmissibility . 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 Munso n 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 n ot shown that the district court abused its discretion in admitting Exhibit 10. Accordingly, the district court did not err in admitting State’s E xhibit 10
as a business record. Because we conclude that this e vidence 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 t he set tlement 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. I daho 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.8 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 fil ed 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 fr om Pi oneer Holding” ; (5 ) “the
amount of the the ft 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 caugh t, the jury could then make the logical inference
that th e 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 t hese 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 ma de oral rulings from the bench. The
d istrict 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 m otion to exclude evidence of the agreement, the order stated that “ T he C ourt 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 motio n to prohibit the State from presenting evidence of the agreement, the court wrote, “ [ t ] he C ourt denied the motion in part and granted it in part .” The district court explained that the “prosecution would be permitted to argue the agre ement 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 o rder, the district co urt addressed the State’s motion to admit evidence of the agreement under I.R.E. 404(b) stating:
The s tate moved to admit evidence in its case

- in

- chief . . . that defendant agreed to repay approximately $1,300,000 to the victim. The Court granted th e state’s m otion. The Court found that there was sufficient evidence from which a9 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. Shea han , 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 concl ude 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 evidenc e 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
iden tical 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 l ikewise 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 p urpose, 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 i s a federal circuit split regardi ng that version of the rule ’s applicability to criminal proceedi ngs. 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 U nited 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 4 08, the Second, Sixth, and Seventh Circuits have held that Rule 408 only10 applies in civil proceedings and does not preclude the admissibility of such settlements in criminal proceedings

. See United States v. Logan , 2 50 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 114 5

. The u nderlying policy considerations of those circuits allowing admission of civil settlements in criminal proceedings is best summarized by the
S econd C ircuit: Rule 408 is pr emised 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 prosecu tions. 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 an d 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

s tates with identical versions of Rule 4 08, 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, t herefore 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 U nited States v. Hays , 872 F.2d 582, 589 (5th Cir. 1989) ; Bailey , 327 F.3d at 1143

- 44; United States v. Arias , 4 3 1 F.3d 1327, 1336

- 38 (11th Cir. 2 005); 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 wo uld 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 t he imagination to envision11 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 “w e 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 exclusio n if the evidence is offered for another purpose, such as

. . . proving an
effort to obstruct a crimina l investigation or prosecution ” indicates that this rule general ly applies

to criminal cases. The drafters of the rule would not have carved out an exce ption 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 te xt itself suggests that it should only apply to civil proceedings
, ” the terms are not solely applicable in the civil conte xt. To the contrary, th e Idaho appellate c ourt s and the Idaho b ar, 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 define d 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 wh ich rules of evidence are applicable,

exc ept as hereinafter provided. ” Because the Idaho Rules of Evidence generally govern all proceedings, I.R.E. 408 applies in criminal cases.

4 Federal R ule 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 ex ercise of its regulatory, investig atory, 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 p recludes 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 f ederal r ule effectively ended the debate on the applicatio n of F.R.E. 408 to criminal proceedings.12 In addition to the plain language of the rule, we find it persuasive t hat the other Idaho
Rule s of Evidence in the 400 series generally apply in the criminal context. In this case, the
district cou rt allowed the S tate 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, applie s in criminal proceedings then it preclude s 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 prec ludes the use of police reports )

. Because w e 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 se ttlement agreemen t. Thus, we turn our analysis to harmless

error. 2. Harmless er ror The State argues that
, even if the civil settle ment evidence was inadmissible, admission of the evidence was harmless beyond a rea sonable 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 ex ceptions, 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 defend ant appealing from an o bjected

- 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 i t presented overwhelming evidence that Munson commi tted 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 paying13 her portion of the 401K and medical be nefits. The State compares Exhibit 6 with State’s Exhibit
2 (which is Bund gard’s payroll register) and argues that Munson should have noticed that a normal payroll register
, like Exhibit 2
, displays the deductions and he rs did not. In addition, the State points to the fact that Munson was a certified public accountant and the Chief Financial
O fficer of Pioneer Holding and should have noticed that she was being overpaid month after
month. We agree with the State that t he 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 har mless. 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, t he 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 cons ciousness 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 regard ing Munson’s reaction when she was first confronted by Pioneer Title in relation to the pay irregularities and her instant agreement to repay wha tever she was wrongfully paid. In addition, Copple gave a detailed account of the s ettlement negotiations. Th is 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) Munso n’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 Pio neer Title because she woul d not have paid the money back if she did intend to
steal it.14 Although the State points to evidence outs ide of the settlement agreement which could
infer Munson’s criminal intent
, the settlement agreement wa s admitted in error and used explicitly to pro ve Munson’ s criminal intent

. Munson’s criminal intent was the only contested
element at trial. Because of that, we cannot say th at 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 M unson’ 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.
C ONCLUSION The district court did not err in admitting evidence of the electronic payroll file. However, the district court er red 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

.