State v. Hollis, COA 23-838, ___ N.C. App. ___ (Aug. 6, 2024)

In this New Hanover case, defendant appealed her conviction for embezzlement of property received by virtue of office or employment, arguing error in admitting business records without an affidavit sworn before a notary public. The Court of Appeals disagreed, finding no error.

Defendant performed purchasing and billing for her employer and had access to the corporate credit card. Another employee discovered two first class tickets to the Bahamas reserved in defendant’s name and purchased with the company card. This led to the discovery of additional fraudulent purchases and expenses, totaling more than $360,000. Defendant came to trial in October of 2022, where the State offered business records from SunTrust Bank and Amazon showing purchases by defendant. The records contained authentication certificates that indicated they were signed under penalty of perjury, but they were not notarized or otherwise confirmed by oath or affirmation. Defendant objected, but the trial court admitted the records. 

Reviewing the appeal, the Court of Appeals noted that the version of Rule of Evidence 803(6) in place prior to March 1, 2024, allowed business records to be admitted with an affidavit, but neither document was sworn before a notary as traditionally expected of an affidavit. The court then parsed whether the certificates with the documents could qualify as an “affidavit” for purposes of the rule, explaining that “[t]he purpose of an oath before a notary is to impart to the affiant the importance of stating the truth, and explicit acknowledgement of the penalty of perjury evinces a similar level of credibility.” Slip Op. at 12-13. Considering this, the court concluded that “[t]he letters from SunTrust and Amazon employees, made under penalty of perjury and communicating that the records were made in the course of a regularly conducted business activity . . . fulfill the purpose of authentication.” Id. at 15. The court found no reversible error in admitting the documents.