MFGA-Wholesale Distributors of Coin Controlled Video Games ex rel. Stripling v. State

L. CHARLES WRIGHT, Retired Appellate Judge. This is an appeal from the forfeiture of a gambling device. The sole issue presented for our review is as follows: “Whether property belonging to Appellant can be condemned for being used as a gambling device when he had no knowledge of its being so used and even so contrary to his instructions.” The record consists only of the petition for forfeiture, appellant’s response to the petition, and an order of the trial court. The record contains exhibits obviously offered by appellant. We cannot ascertain from the record, however, if those exhibits were admitted into evidence. The trial court's order reflects that a hearing was held on the matter and that the court considered the evidence presented at that hearing in reaching its decision. We do not have before us the transcript of the hearing. When the trial court considers oral testimony in reaching its decision and that testimony is not present in the record as either a Rule 10(d) statement, Alabama Rules of Appellate Procedure, or a transcript, it must be conclusively presumed that the testimony is sufficient to support the judgment. Boatfield v. Boatfield, 570 So.2d 1250 (Ala.Civ.App.1990). This court is limited to a review of the record before it. An issue not reflected in the record as being properly raised in the trial court cannot be raised for the first time on appeal. Totten v. Lighting & Supply, 507 So.2d 502 (Ala.1987). The judgment of the trial court is affirmed. The foregoing opinion was prepared by Retired Appellate Judge L. CHARLES WRIGHT while serving on active duty status as a judge of this court under the provisions of § 12-18-10(e), Code 1975, and this opinion is hereby adopted as that of the court. AFFIRMED. All the Judges concur.