State v. Cunningham, 435 P.3d 539

Jeremy York Cunningham was convicted of possession of a controlled substance; the State sought restitution under I.C. § 37-2732(k) for prosecution costs.
At the first restitution hearing the State presented an unsworn boilerplate Statement of Costs; this Court vacated that award and remanded, holding unsworn representations did not constitute substantial evidence (State v. Cunningham).
On remand the State presented a prosecuting-attorney timesheet (unsigned, blank billing-rate column, with attorney initials) and a signed notarized affidavit from an administrative specialist who said she reviewed the timesheet and applied payroll rates to calculate $906.75 in prosecution costs.
Cunningham objected that the timesheet and affidavit lacked foundational support and were hearsay; the district court admitted both under the business-records exception (I.R.E. 803(6)) and awarded $906.75 plus $100 lab costs.
On second appeal the Idaho Supreme Court considered whether hearsay rules apply to § 37-2732(k) hearings, whether the business-records exception properly admitted the documents, and whether the award was supported by substantial evidence.
The Court vacated the restitution award and declined to remand, holding the timesheet and affidavit were improperly admitted and the State failed to present substantial evidence of actual prosecution costs.

Issue	State's Argument	Cunningham's Argument	Held
Do Idaho evidence hearsay rules apply to § 37-2732(k) restitution hearings?	§ 19-5304's hearsay allowance for victim restitution should inform or extend to § 37-2732(k); hearsay is acceptable	Hearsay rules apply; § 19-5304(6) does not extend to § 37-2732(k)	Hearsay rules apply to § 37-2732(k) hearings; § 19-5304(6) exception does not extend to them
Was the timesheet admissible under the business-records exception (I.R.E. 803(6))?	The timesheet is a regularly kept prosecutorial record used to calculate costs	The timesheet lacks foundational proof of regular, non-litigation use and was prepared for restitution/litigation	Not admissible under 803(6); no evidence it was kept in ordinary course or for non‑litigation purposes
Was the affidavit admissible under the business-records exception?	Affidavit authenticated and summarized review of business records; admissible	Affidavit was prepared shortly before hearing to prove costs and not a regular business record	Not admissible under 803(6); affidavit was created for litigation and lacks business‑record foundation
Was the restitution award supported by substantial evidence?	Testimony plus the documents supplied sufficient proof of actual costs	State failed to present sworn, task‑specific proof of hours/rates; reliance on hearsay insufficient	No; award vacated because admitted evidence was improperly received and remaining testimony depended on those documents

State v. Cunningham, 161 Idaho 698, 390 P.3d 424 (Idaho 2017) (unsworn statements are not substantial evidence for restitution under § 37-2732(k))
State v. Sandoval-Tena, 138 Idaho 908, 71 P.3d 1055 (Idaho 2003) (investigative public records inadmissible under Rule 803(8) may not be admitted via the business-records exception)
Portfolio Recovery Associates, LLC v. MacDonald, 162 Idaho 228, 395 P.3d 1261 (Idaho 2017) (business-records exception requires production in ordinary course, at or near time of occurrence, and not in anticipation of trial)
Hurtado v. Land O’Lakes, Inc., 147 Idaho 813, 215 P.3d 533 (Idaho 2009) (foundational requirements for business records supply trustworthiness)
State v. Lombard, 149 Idaho 819, 242 P.3d 189 (Idaho Ct. App. 2010) (amount of restitution is a factual determination reviewed for substantial evidence)