The defendant was not charged with any criminal activity relating to the guarantee agreement. Rather, the defendant was charged with making unauthorized payments from the Foss account. Moreover, counsel conceded during oral argument that the fact that the agreement was signed months after it was allegedly made weakened its probative value. Accordingly, the probative value of the agreement, if any, is not of such a character as to warrant a new trial. In addition, the evidence in question is cumulative.
Cumulative evidence is defined as additional evidence of the same kind to the same point.
Evidence which goes to a point upon which no evidence was adduced at the former trial is not cumulative. At best, introduction of the actual agreement supports the testimony adduced at trial, from the defendant and Conway, that they executed a written agreement which provided for a ten percent return on HEDC's guarantee of the concert investments. The actual agreement is simply additional evidence of the defense's theory at trial that the defendant had entered into the agreement on behalf of HEDC and thus had no purpose to deprive HEDC of any money. Introduction of the agreement would have been cumulative of testimony already admitted and, furthermore, would not have addressed the State's contention that the defendant was not authorized to take the funds from HEDC's bank account. We therefore need not address the State's argument that the defendant was at fault for not discovering the agreement prior to trial, an issue which the trial court also did not address.