Thе District Attorney of Cobb County filed 12 complaints for condemnation in the Superior Court of Cobb County, seeking to condemn several game machines owned and operated by appellants. The cases were consolidated and the superior court conducted a bench trial where the parties presented lay аnd expert witness testimony about how the game machines were manufactured and programmed, how they were played, and how they dispensed rewards. The trial cоurt issued a 76-page final order detailing the evidence adduced with respect to each machine, the position of the parties and their experts with respect to each game machine, the court’s analysis of the applicable law, and the court’s findings of fact and conclusions of law with respect to each game machine. The trial court concluded that four of the eleven game machines were gambling devices subject to condemnation pursuant to OCGA §§ 16-12-20 аnd 16-12-35, but that seven of the game machines were not. In the State’s appeal, the only issue determined by the Court of Appeals was whether the game machines complied with the reward redemption scheme under OCGA § 16-12-35 (d), thereby excepting them
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from condemnation. The Court of Appeals upheld the trial court’s condemnation оf the four game machines and then reversed the trial court regarding the remaining seven game machines and held that they too should be condemned for violating OCGA § 16-12-35 (d).
State of Ga. v. Damani,
When thе State filed its notice of appeal, it asked the clerk of the trial court to transmit the entire trial record to the Court of Appeals. While the appeal was pending, the Court of Appeals issued an order directing the trial court to send to the appellate court a copy of the State’s expert report which was admitted at the bench trial. Upon the issuance of this order, appellants discovered that the entire trial record had not been sent to the Court of Appeals as the State initially requested. In an attempt to complete the record for appeal, appellants immediately filed a motiоn in the Court of Appeals requesting that the trial court be ordered to transmit all exhibits admitted at trial. In that motion, appellants specifically requested the transmission of their expert’s report. After two months passed with no response from the Court of Appeals, appellants filed a second motion to supplement the record. Thereafter, the Court of Appeals issued its opinion resolving the case on the merits and denying the motions to supplement as moot. Appellants thеn filed a post-judgment motion to supplement the record, which the Court of Appeals also denied.
We granted appellants’ petition for certiorari posing the following questions: (1) whether the game machines met the definition in OCGA § 16-12-35 for machines designed for bona fide amusement purposes; and (2) whether the Court of Appeals erred in denying the motions to supplement the record. Because exhibits necessary to assessing the true and complete facts as they occurred in the triаl court were omitted from the record on appeal and the requests to supplement filed before the Court of Appeals reached its decision wеre denied as moot, we vacate the judgment.
1. If an appellate court is to review and correct any enumerated errors, it must do so based on the record sent from the trial court as designated by the appellant in the notice of appeal and as further designated by appellee (OCGA § 5-6-42) and the reviewing court (OCGA § 5-6-41 (f)). See
McClaskey v. Jiffy Lube, Inc.,
2. Appellate courts have authority to supplement the record pursuant to OCGA § 5-6-48 (d), which provides:
At any stagе of the proceedings, either before or after argument, the court shall by order, either with or without motion,. . . require that additional portions of the record or transcript of proceedings be sent up, or require that a complete transcript of evidence and proceedings be prepared and sent up, or take any other action to perfect the appeal and record so that the appellate court can and will pass upon the appeal. ...
While invoking OCGA § 5-6-48 (d) to supplement a record is within the appellate court’s discretion, there are two goals to consider in determining whether to exercise such discretion: (1) that cases be decided according to true and complete facts as they occurred in the trial court and (2) that cases on apрeal not be further delayed by proceedings in the trial court.
State v. Pike,
Here, it has been shown that despite the State’s notice of appeal and the appellants’ motions for supplementation, each requesting that thе entire record be transmitted to the appellate court, the Court of Appeals did not have all of the record materials before it to ascertain the true and complete facts that occurred in the trial court. The Court of Appeals invoked OCGA § 5-6-48 (d) to obtain the State’s expert report, but did not obtain the appellants’ expert report which was also relied upon by the trial court in its 76-page decision. The Court of Appeals gave weight to the State’s evidence when it specifically determined the State had carried its burden by showing by a preponderance of the evidence that the machines violated the redemption scheme in OCGA § 16-12-35 (d).
State of Ga. v. Damani,
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supra,
3. Because the judgment is vacated on the above-referenced grounds, we need not reach the question whether the game machines satisfied the redemption requirements of OCGA § 16-12-35.
Judgment vacated and case remanded with direction.