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State, Dep't of Taxation v. Kunkle

December 5, 2008

STATE OF OHIO, DEPARTMENT OF TAXATION APPELLEE
v.
ALAN G. KUNKLE, ET AL. APPELLANT



Trial Court No. DOC. 27, PG. 141.

The opinion of the court was delivered by: Pietrykowski, P.J.

DECISION AND JUDGMENT

{¶1} This is an appeal from a judgment of the Fulton County Court of Common Pleas which found defendant-appellant, Alan G. Kunkle, guilty of criminal contempt of court for lying under oath. The court sentenced him to 10 days incarceration. Appellant now challenges that judgment through the following assignment of error:

{¶2} "The trial court erred in finding appellant in criminal contempt of court for allegedly giving false testimony at a July, 2004 judgment debtor examination."

{¶3} This case was initiated in June 2003, when appellee the state of Ohio, Department of Taxation, filed a proceeding in aid of execution of judgment in the court below. That proceeding was filed after appellee obtained a judgment against appellant for $21,446.30 for past due personal income taxes. The first debtor's examination occurred on August 22, 2003, at which appellant denied owning any interest in real property. That examination was transcribed but was not presided over by the lower court. Subsequently, on July 19, 2004, the case proceeded to a debtor's examination before Judge James Barber. Again, appellant denied owning any real estate or having any interest in real estate. Ultimately, Judge Barber recused himself from this case for a potential conflict of interest, and Judge Joseph Schmenk was assigned to the case.

{¶4} On May 3, 2007, appellee filed in the court below a motion to cite appellant for contempt of court for lying under oath during the July 19, 2004 proceeding in aid of execution. Appellee supported its motion with certified copies of various deeds reciting some of the real estate holdings of appellant and a photocopy of an answer to an amended complaint filed in a case in federal district court in which appellant claimed an interest in the same real estate. The case proceeded to a hearing before Judge Schmenk on the motion for contempt at which Andrew Genter, an employee of Huntington National Bank (formerly Sky Bank), testified regarding the authenticity of various documents reflecting bank accounts at Huntington. The court also admitted into evidence the copies of the various deeds attached to appellee's motion as well as appellant's answer to the amended complaint referred to in appellee's motion. The court then heard the arguments of counsel. Appellee asserted that appellant was in contempt of court for lying under oath at the July 19, 2004 debtor's examination, and expressly referred to the following colloquy from that exam between appellee's counsel and appellant:

{¶5} "Q: Do you have any business interests or relationships?

{¶6} "A: I don't understand what you're going to.

{¶7} "Q: Do you own any interest in any business?

{¶8} "A: No.

{¶9} "Q: You are not in partnership with any individual or individuals?

{¶10} "A: Not that I know of.

{¶11} "Q: You do not own any stock in any companies?

{¶12} "A: You mean like stock market?

{ΒΆ13} "Q: I mean ...


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