N.M. R. App. P. 12-321
N.M. R. App. P. 12-321
Committee commentary. - In 2016, the committee renumbered Rule 12-216 NMRA and placed it in the general provisions article as Rule 12-321 NMRA.
Preservation serves three primary purposes. State v. Bell, 2015-NMCA-028, ¶ 2, 345 P.3d 342. First, preservation allows the trial court an opportunity to cure claimed errors. Id. Second, it allows "the opposing party a fair opportunity to respond to the claim of error and to show why the [trial] court should rule against that claim." Id. (alteration in original). And third, it creates a record from which the appellate court may "make an informed decision." Id.
Subparagraph (B)(2) sets forth a non-exhaustive list of issues that may be raised for the first time on appeal, including fundamental error. Although the doctrine of fundamental error generally applies only in criminal cases, our appellate courts have applied the doctrine "in civil cases under the most extraordinary and limited circumstances." Estate of Gutierrez v. Meteor Monument, L.L.C., 2012 -NMSC-004, ¶ 33, 274 P.3d 97; see, e.g., Gracia v. Bittner, 1995 NMCA-064, ¶¶ 24-26, 120 N.M. 191, 900 P.2d 351.
Rule 1-046 NMRA of the Rules of Civil Procedure for the District Courts and Rule 11-103 NMRA of the Rules of Evidence also address preservation.
[Adopted by Supreme Court Order No. 16-8300-011, effective for all cases pending or filed on or after December 31, 2016.]
.ANNOTATIONS The 2016 amendment, approved by Supreme Court Order No. 16-8300-011, effective December 31, 2016, provided a non-exhaustive list of issues that may be raised for the first time on appeal, made stylistic and technical changes, and added the committee commentary; in the rule heading, added "preservation"; in Paragraph (A), in the heading, deleted "questions" and added "issues"; in the first sentence, after "preserve", deleted "a question" and added "an issue", after "decision by the", deleted "district" and added "trial", after "fairly invoked", deleted "but formal exceptions are not required, nor is it necessary to file a motion for a new trial", and in the second sentence, deleted "Further"; added new Subparagraph (B)(1); designated the language of former Paragraph (B) as Subparagraph (B)(2); and in Subparagraph (B)(2), after "This rule", deleted "shall" and added "does", after "not preclude", added "a party from raising or", after "appellate court", added "in its discretion", after "from considering", deleted "jurisdictional questions or, in its discretion, questions involving:"; deleted the language from former Subparagraphs (B)(1) and (B)(2) and added the remainder of Subparagraph (B)(2). The 1993 amendment, effective September 1, 1993, substituted "the party" for "him" at the end of Paragraph A. Recompilations. - Pursuant to Supreme Court Order No. 16-8300-011, 12-216 NMRA was recompiled and amended as 12-321 NMRA, effective December 31, 2016. I. GENERAL CONSIDERATION. Preservation of state constitutional claims. - Where a state constitutional provision has previously been interpreted more expansively than its federal counterpart, trial counsel must develop the necessary factual basis and raise the applicable constitutional provision in trial court to preserve a state constitutional claim. Where the provision has never before been addressed under New Mexico's interstitial analysis, trial counsel additionally must argue that the state constitutional provision should provide greater protection and suggest reasons as to why the provision should provide greater protection, such as a flawed federal analysis, structural differences between state and federal government, or distinctive state characteristics. State v. Leyva, 2011-NMSC-009, 149 N.M. 435, 250 P.3d 861. State constitutional claim preserved. - Where defendant filed a motion to suppress evidence obtained as a result of police questioning after traffic citations had been issued; defendant cited both the Fourth Amendment and Article II, Section 10 and stated that the New Mexico Constitution provided defendant greater protections from unreasonable searches and seizures than the Fourth Amendment; and defendant did not cite in the motion or discuss any cases at the suppression hearing that addressed the greater protection provided by Article II, Section 10, defendant preserved the state constitutional argument for review on appeal. State v. Leyva, 2011-NMSC-009, 149 N.M. 435, 250 P.3d 861. Distinction between reservation and preservation of questions for review. - Where defendant was charged with possession of a controlled substance; defendant filed a motion to suppress the drug evidence; and defendant entered into a conditional plea agreement which stated that defendant did not waive the right to appeal the issue of whether the search of defendant's home was unreasonable, although defendant preserved the issue of constructive possession by filing the motion to suppress, defendant did not reserve, and therefore waived, the right to appeal the issue of whether there was sufficient evidence to support a finding that defendant had constructive possession of the drugs. State v. Benavidez, 2010-NMCA-035, 148 N.M. 190, 231 P.3d 1132, cert. denied, 2010-NMCERT-003, 148 N.M. 559, 240 P.3d 14. Opinion of the court in former appeal is binding upon appellate court on a second appeal. Van Orman v. Nelson, 1969-NMSC-035, 80 N.M. 119, 452 P.2d 188. Preservation of error. - Where defense counsel objected to the first of a series of questions by the prosecuting attorney that continued in the same line of questioning as the first question, the defendant preserved his arguments concerning the impropriety of the subsequent questions. State v. Soto, 2007-NMCA-077, 142 N.M. 32, 162 P.3d 187, cert. denied, 2007-NMCERT-006. Distinction between preservation and reservation. - One preserves an issue for appeal by invoking a ruling from the court on the question; one reserves an issue for appeal by specifying the issue as a condition to a plea of guilty or nolo contendere. Because counsel may have thought it unnecessary to preserve an issue that the court and the prosecution had agreed could be reserved for appeal, particularly since the court had ruled adversely on the same issue in other cases, the fundamental error standard must apply to prevent a miscarriage of justice. Accordingly, preservation of the issue was not necessary and, because defendant properly reserved the issue for appeal, she entered a valid conditional plea and the issue was reviewable on appeal. State v. Hodge, 1994-NMSC-087, 118 N.M. 410, 882 P.2d 1. II. PRESERVATION OF QUESTIONS FOR REVIEW. A. IN GENERAL. Multiple theories. - While the state may have a number of different theories as to why evidence should not be suppressed to preserve its arguments for appeal, the state must have alerted the court as to which theories it was relying on in support of its argument to allow the court to make a ruling thereon. State v. Janzen, 2007-NMCA-134, 142 N.M. 638, 168 P.3d 768. Necessity for proper preservation. - Question not properly preserved below will not be reviewed on appeal. Barnett v. Cal M, Inc., 1968-NMSC-159, 79 N.M. 553, 445 P.2d 974; State v. Gonzales, 1990-NMCA-040, 110 N.M. 218, 794 P.2d 361, aff'd, 1991-NMSC-015, 111 N.M. 363, 805 P.2d 630. A claim that an officer was acting out of ulterior motives in making an investigatory vehicle stop, thereby invoking N.M. Const. art II, § 10, was not preserved under this rule where the district court did not find anything pretextual about the stop; even assuming that a pretextual stop would invoke that section, there was no factual foundation for the claim. State v. Vandenberg, 2003-NMSC-030, 134 N.M. 566, 81 P.3d 19. Purpose of preservation rule. - The principal purpose of the rule requiring a party to preserve error in the trial court of issues sought to be asserted on appeal is to alert the mind of the trial judge to the claimed error and to accord the trial court an opportunity to correct the matter. Madrid v. Roybal, 1991-NMCA-068, 112 N.M. 354, 815 P.2d 650. Mind of trial court must be clearly alerted to a claimed nonjurisdictional error in order to preserve it for appeal; questions not so presented to the trial court cannot be raised for the first time on appeal. Marquez v. Marquez, 1965-NMSC-016, 74 N.M. 795, 399 P.2d 282; Shelley v. Norris, 1963-NMSC-193, 73 N.M. 148, 386 P.2d 243. Matter not brought to the attention of the trial court cannot be raised for the first time on appeal. Chrysler Credit Corp. v. Beagles Chrysler-Plymouth, 1971-NMSC-112, 83 N.M. 272, 491 P.2d 160; Barnett v. Cal M, Inc., 1968-NMSC-159, 79 N.M. 553, 445 P.2d 974. Generally, a failure to call the trial court's attention to the possibility that error has been committed results in waiver of the right to object or request review of alleged error. Mitchell v. Allison, 1949-NMSC-070, 54 N.M. 56, 213 P.2d 231. Where appellant did nothing to call claimed error to the attention of the trial court so as to preserve it for review, and theory was not even included in his motion for a new trial following the entry of judgment, it could not be first raised in the supreme court. City of Albuquerque v. Ackerman, 1971-NMSC-032, 82 N.M. 360, 482 P.2d 63. Where objection as worded did not call the trial court's attention to the matter complained of, it would be treated as if no objection had been made. Hill v. Burnworth, 1973-NMCA-135, 85 N.M. 615, 514 P.2d 1312. Argument sufficient to preserve issue for appellate review. - The preservation rule, the requirement that it must appear that a ruling or decision by the trial court was fairly invoked, is applied to advance three primary purposes: to specifically alert the trial court to a claim of error so that any mistake can be corrected at that time, to allow the opposing party a fair opportunity to respond to the claim of error and to show why the trial court should rule against the claim, and to create a record sufficient to allow an appellate court to make an informed decision regarding the contested issue. State v. Bell, 2015-NMCA-028, cert. denied, 2014-NMCERT-012. In DWI trial, Defendant's assertions that the officer that made the traffic stop lacked reasonable suspicion to conduct an investigation beyond the traffic infraction, together with defendant's argument that the facts known to the officer were insufficient to justify prolonging the traffic stop for purposes of a DWI investigation, were sufficient to alert the trial court to the constitutional issue and to trigger protections pursuant to Article II, Section 10 of the New Mexico Constitution, and therefore defendant's state constitutional argument was sufficiently preserved for appellate review. State v. Bell, 2015-NMCA-028, cert. denied, 2014-NMCERT-012. Confrontation issue was preserved. - Where defense counsel initially acquiesced to the admission of two-way video testimony by one of the state's witnesses, but raised the issue one week later, stating to the court that the defense had more thoroughly considered the issue and asserted that the video testimony would violate defendant's right to confrontation, and where the district court clearly addressed the issue when it responded to the confrontation claim by ruling that defense counsel had waived his client's right to object, the issue was sufficiently brought to the attention of the court and preserved for appellate review. State v. Thomas, 2016-NMSC-024. Contention not raised in trial court cannot be raised on appeal for the first time. Neece v. Kantu, 1973-NMCA-020, 84 N.M. 700, 507 P.2d 447, cert. denied, 84 N.M. 696, 507 P.2d 443; Entertainment Corp. of Am. v. Halberg, 1961-NMSC-106, 69 N.M. 104, 364 P.2d 358; Batchelor v. Charley, 1965-NMSC-001, 74 N.M. 717, 398 P.2d 49; Wynne v. Pino, 1967-NMSC-254, 78 N.M. 520, 433 P.2d 499; DeVilliers v. Balcomb, 1968-NMSC-164, 79 N.M. 572, 446 P.2d 220; Tafoya v. Whitson, 1971-NMCA-098, 83 N.M. 23, 487 P.2d 1093, cert. denied, 83 N.M. 22, 487 P.2d 1092; Gurule v. Albuquerque-Bernalillo Cnty. Economic Opportunity Bd., 1972-NMCA-094, 84 N.M. 196, 500 P.2d 1319, cert. denied, 84 N.M. 180, 500 P.2d 1303; Edwards v. First Fed. Sav. & Loan Ass'n, 1985-NMCA-015, 102 N.M. 396, 696 P.2d 484; State ex rel. Bardacke v. Welsh, 1985-NMCA-028, 102 N.M. 592, 698 P.2d 462. Arguments which were not made below will not be considered on appeal. G.M. Shupe, Inc. v. Bureau of Revenue, 1976-NMCA-040, 89 N.M. 265, 550 P.2d 277, cert. denied, 89 N.M. 321, 551 P.2d 1368. Where there was nothing in the record before appellate court to indicate that question was ever presented to or passed upon by the trial court, and it was not jurisdictional, it may not properly be raised for the first time on appeal. Perry v. Staver, 1970-NMCA-096, 81 N.M. 766, 473 P.2d 380; Woolwine v. Furr's, Inc., 1987-NMCA-133, 106 N.M. 492, 745 P.2d 717. Attempt to raise matter before supreme court which was not raised in trial court and is not jurisdictional will not be considered. State ex rel. Brown v. Hatley, 1969-NMSC-018, 80 N.M. 24, 450 P.2d 624; Koran v. White, 1961-NMSC-102, 69 N.M. 46, 363 P.2d 1038; Roseberry v. Phillips Petroleum Co., 1962-NMSC-029, 70 N.M. 19, 369 P.2d 403; Drink, Inc. v. Babcock, 1966-NMSC-236, 77 N.M. 277, 421 P.2d 798. Except for jurisdictional matters, issues not urged in the trial court may not be raised for the first time on appeal. State ex rel. State Hwy. Comm'n v. Pelletier, 1966-NMSC-141, 76 N.M. 555, 417 P.2d 46; In re Caffo, 1961-NMSC-161, 69 N.M. 320; McDonald v. Artesia Gen. Hosp., 1963 -NMSC-199, 73 N.M. 188, 386 P.2d 708. Where a contention appears to have been urged for the first time on appeal, it cannot be considered, no proper foundation for review having been laid by requested findings and appropriate objections to the court's findings. Cross v. Ritch, 1956-NMSC-049, 61 N.M. 175, 297 P.2d 319. Because the argument raised on appeal was not raised below, no error was preserved. Cisneros v. Molycorp, Inc., 1988-NMCA-080, 107 N.M. 788, 765 P.2d 761. Res judicata defense may not be raised for first time on appeal. - In New Mexico action on New York judgment awarding plaintiff only the principal and interest due on a note, defendant could not raise the affirmative defense of res judicata as barring recovery of attorney's fees in New Mexico default judgment for the first time on appeal. Xorbox v. Naturita Supply Co., 1984-NMSC-062, 101 N.M. 337, 681 P.2d 1114. Objection required. - To preserve error on appeal, there must be a proper objection. Poorbaugh v. Mullen, 1982-NMCA-141, 99 N.M. 11, 653 P.2d 511. Where defendant did not object to action at trial, he cannot complain at supreme court level. Sullivan v. Sullivan, 1971-NMSC-055, 82 N.M. 554, 484 P.2d 1264. Defendant who failed to object to prosecution's repeated references to a violent film, failed to preserve the issue for review upon appeal; moreover, even if the references were error, the totality of the record failed to show that the error prejudiced defendant's fundamental rights so as to merit reversal. State v. Begay, 1998-NMSC-029, 125 N.M. 541, 964 P.2d 102. Objection made for first time on appeal will not be entertained, except for questions of jurisdiction. Montano v. Saavedra, 1962-NMSC-095, 70 N.M. 332, 373 P.2d 824. Ruling to be invoked below. - Issue was not before appellate court for review where no ruling of the trial court was invoked. Somerstein v. Gutierrez, 1973-NMCA-070, 85 N.M. 130, 509 P.2d 897; McNabb v. Warren, 1971-NMSC-109, 83 N.M. 247, 490 P.2d 964. Matters not brought into issue by the pleadings and upon which no decision of the trial court was sought or fairly invoked cannot be raised on appeal. Security Ins. Co. v. Chapman, 1975-NMSC-052, 88 N.M. 292, 540 P.2d 222; Groendyke Transp., Inc. v. New Mexico SCC, 1973-NMSC-112, 85 N.M. 718, 516 P.2d 689. Issues not properly raised in the trial court and on which a ruling by the trial court was not properly invoked will not be considered on appeal. In re Will of Skarda, 1975-NMSC-031, 88 N.M. 130, 537 P.2d 1392. Question is not before court of appeals for review where the trial court did not rule on the motion. Yucca Ford, Inc. v. Scarsella, 1973-NMCA-042, 85 N.M. 89, 509 P.2d 564, cert. denied, 85 N.M. 86, 509 P.2d 561. Nonjurisdictional question cannot be raised for the first time in the supreme court where no ruling was invoked in the trial court. Drink, Inc. v. Babcock, 1966-NMSC-236, 77 N.M. 277, 421 P.2d 798; Davis v. Severson, 1963-NMSC-021, 71 N.M. 480, 379 P.2d 774. Where appellants did not invoke a ruling by the trial court on question, it was not one for review; nothing but jurisdictional questions may be raised in supreme court for the first time. Danz v. Kennon, 1957-NMSC-090, 63 N.M. 274, 317 P.2d 321. A party must fairly invoke a ruling from the trial court in order to preserve a question for appeal. State v. Wacey C., 2004-NMCA-029, 135 N.M. 186, 86 P.3d 611. Burden is on appellant to show that question was ruled upon by the trial court. Batchelor v. Charley, 1965-NMSC-001, 74 N.M. 717, 398 P.2d 49; Entertainment Corp. of Am. v. Halberg, 1961-NMSC-106, 69 N.M. 104, 364 P.2d 358. Incomplete record. - Plaintiff failed to establish that the issue of erroneously given instructions was properly preserved for appellate review because of the incompleteness of the record before the court of appeals. Woolwine v. Furr's, Inc., 1987-NMCA-133, 106 N.M. 492, 745 P.2d 717. Plaintiff cannot change argument on appeal, much less claim for relief. Rust Tractor Co. v. Consolidated Constructors, Inc., 1974-NMCA-096, 86 N.M. 658, 526 P.2d 800. Party cannot change his theory on appeal, nor can the fact that appellant, some three months after trial, submitted requested findings on the theories of larceny and false pretenses, aid his position. American Bank of Commerce v. United States Fid. & Guar. Co., 1973-NMSC-078, 85 N.M. 478, 513 P.2d 1260. Where appellant on appeal changed his theory presented to the hearing officer, his new theory would not be considered by an appellate court. Musgrove v. Department of Health & Social Servs., 1972-NMCA-091, 84 N.M. 89, 499 P.2d 1011 (Ct. App.), cert. denied, 84 N.M. 77, 499 P.2d 999. Party will not be permitted to change his theory of the case on appeal; principle applies on review by courts of administrative determinations so as to preclude from consideration questions or issues which were not raised in the administrative proceedings. Board of Educ. v. State Bd. of Educ., 1968-NMCA-040, 79 N.M. 332, 443 P.2d 502. Party on appeal is in no position to attack a finding which he specifically requested below. Cochran v. Gordon, 1967-NMSC-014, 77 N.M. 358, 423 P.2d 43. Contention that the evidence showed contributory negligence as a matter of law could not first be made on appeal, particularly where appellant had procured submission of the question to the jury through interrogatories. Rheinboldt v. Fuston, 1929-NMSC-021, 34 N.M. 146, 278 P. 361. Issues are preserved for review where, although a responsive pleading is not filed, both parties to an action file briefs and argue before the district court. Temple Baptist Church, Inc. v. City of Albuquerque, 1982-NMSC-055, 98 N.M. 138, 646 P.2d 565. Application of fundamental error to review state's unpreserved questions. - The state's failure to preserve error by drawing the court's attention to the fact this was a single prosecution, rather than successive prosecutions for the same crime, does not itself constitute a miscarriage of justice. Rather, a miscarriage of justice must exist notwithstanding the failure to preserve error. Only when a miscarriage of justice results can the principle of fundamental error afford review of the state's unpreserved questions. State v. Alingog, 1994-NMSC-063, 117 N.M. 756, 877 P.2d 562. Use of fundamental error. - The doctrine of fundamental error should be applied sparingly, and then only to prevent miscarriages of justice. State v. Glen Slaughter & Assocs., 1994-NMCA-169, 119 N.M. 219, 889 P.2d 254. Confrontation clause claim preserved. - The defendant was not required to expressly cite the confrontation clause or use the phrase "motive to lie" in order to preserve his constitutional claim. State v. Martinez, 1996-NMCA-109, 122 N.M. 476, 927 P.2d 31. Issue before court. - Where issue of city's negligence, liability or possession of cave, collapse of which killed four boys, was mentioned in pretrial order, defendant's opening statement, motion for directed verdict and objection to instructions, question of possession of dedicated area was before appellate court for review. Williams v. Town of Silver City, 1972-NMCA-132, 84 N.M. 279, 502 P.2d 304, cert. denied, 84 N.M. 271, 502 P.2d 296. Question of liability preserved. - Where the requested findings of both parties presented the question of what, if anything, had been done by codefendant, and defendants' requested findings raised the issue of whether plaintiff suffered any damage as a result of actions by codefendant, the issue of codefendant's liability was presented to the trial court and preserved for review. Eslinger v. Henderson, 1969-NMCA-061, 80 N.M. 479, 457 P.2d 998. Appellant was not barred from claiming that trial court erred in rendering judgment on verdict, merely because of failure to move for a new trial or judgment n.o.v. Transwestern Pipe Line Co. v. Yandell, 1961-NMSC-173, 69 N.M. 448, 367 P.2d 938. Argument sufficient to preserve issue. - A due process challenge was preserved since, although the plaintiffs' arguments were not a model of clarity, and certainly could have been made with more specificity, they were sufficient to alert the trial court and opposing counsel to the substance of the argument being made. Garcia ex rel. Garcia v. La Farge, 1995-NMSC-019, 119 N.M. 532, 893 P.2d 428. Issue of exigent circumstances in warrantless search preserved. - In his motion to suppress evidence based on unlawful search and seizure in violation of N.M. Const., art. II, § 10, the defendant need not have asserted that the state constitution should be interpreted differently than the Fourth Amendment since there is established state law interpreting the former more expansively than the latter; the defendant had adequately developed facts on the issue of exigent circumstances, and the trial court had made a ruling thereon, preserving the issue for review. State v. Gomez, 1997-NMSC-006, 122 N.M. 777, 932 P.2d 1. B. TRIAL COURT RULING REQUIREMENT. 1. GENERALLY. Generally, no appeal from anything other than formal written order or judgment. - In the absence of an express provision or rule, no appeal will be from anything other than a formal written order or judgment signed by the judge and filed in the case or entered upon the records of the court and signed by the judge thereof. State v. Morris, 1961-NMSC-120, 69 N.M. 89, 364 P.2d 348. Oral ruling by trial judge is not a final judgment; it is merely evidence of what the court has decided to do, as the judge can change such a ruling at any time before the entry of a final judgment. State v. Morris, 1961-NMSC-120, 69 N.M. 89, 364 P.2d 348. Claims previously disposed of in prior appeal are not considered. Roessler v. State, 1969-NMCA-003, 79 N.M. 787, 450 P.2d 196, cert. denied, 395 U.S. 967, 89 S. Ct. 2115, 23 L. Ed. 2d 754 (1969). And failure to appeal original conviction bars subsequent post-conviction review. - The question of error in a preliminary hearing is foreclosed from review in an appeal from an order denying a motion for post-conviction relief by the failure to take an appeal from the original conviction. State v. Anderson, 1973-NMCA-078, 84 N.M. 786, 508 P.2d 1019. A claim that the trial record is not truthful, based on the defendant's view of his trial and his view as to what the witnesses knew and testified about, when not raised before the trial court, will not be considered for the first time in post-conviction proceedings. State v. Hibbs, 1971-NMCA-100, 82 N.M. 722, 487 P.2d 150. Ruling specifically requested by defendant not fairly invoked. - Where defendant himself requested a specific finding, a trial court ruling on the issue was not fairly invoked, as required by former Rule 308, N.M.R. App. P. (Crim.) (see now this rule). State v. Miranda, 1983-NMCA-141, 100 N.M. 690, 675 P.2d 422. 2. APPLICABILITY OF REQUIREMENT. Application of preservation rule is limited to alleged errors by the district court. Piano v. Premier Distributing Co., 2005-NMCA-018, 137 N.M. 57, 107 P.3d 11, cert. denied, 2005-NMCERT-002. Rule applies to state as well as to defendant. So where the prosecutor fails to contest an arrest date or to ask for an evidentiary hearing on the issue of whether the defendant was denied a speedy trial, these issues will not be considered on appeal. State v. Tafoya, 1977-NMCA-115, 91 N.M. 121, 570 P.2d 1148. And applies to appeal from proceeding for post-conviction relief. - Where no issues are presented in an earlier motion for post-conviction relief, such issues may not be raised in a later appeal from the denial of the earlier motion. State v. Flores, 1968-NMCA-053, 79 N.M. 412, 444 P.2d 597. Where no appeal is taken from an order revoking a suspended sentence, the sufficiency of the evidence on which the revocation is based is not before the court of appeals on direct review and cannot be raised for the first time in the court of appeals in an appeal from a denial of post-conviction relief. State v. Gonzales, 1968-NMCA-054, 79 N.M. 414, 444 P.2d 599. Where matters are not raised in a post-conviction motion, the trial court has no knowledge of them and, thus, cannot err in not considering them. These matters, being raised for the first time on appeal, are not before the appellate court for review. State v. Carr, 1973-NMCA-118, 85 N.M. 463, 513 P.2d 397. 3. SPECIFICITY OF OBJECTION. Challenge to racial composition of jury panel. - Where, during the jury selection process, defendant moved to strike the entire jury panel because defendant claimed that since defendant was black, defendant was entitled to a jury panel that had some blacks, defendant failed to preserve defendant's claim that defendant had been denied a right to a fair and impartial jury because defendant's objection was insufficient in terms of specificity and timeliness, and did not amount to a constitutional challenge that defendant's right to have a jury selected from a fair cross-section of the community had been violated. State v. Riley, 2010-NMSC-005, 147 N.M. 557, 226 P.3d 656. Sixth Amendment objection not preserved. - Where the state's key witness made inconsistent statements in a deposition and at trial; defense counsel objected to the state's direct examination of the witness about which version of the witness's testimony was true on the grounds that the witness should be provided an attorney to advise him about his Fifth Amendment rights against self-incrimination; the state responded that it did not intend to prosecute the witness for perjury even if he had lied during his deposition and that the trial court could grant the witness immunity from future perjury prosecution; the trial court decided against immunity and requiring the witness to consult with an attorney; during direct examination, the witness testified that he had not been promised anything in exchange for his testimony; and defense counsel asked the trial court to permit defense counsel to cross-examine the witness about the state's non-prosecution promise made during the discussion of the witness's Fifth Amendment rights, defense counsel did not alert the trial court to the fact that the defendant was raising his Sixth Amendment right to cross-examine the witness concerning whether the state had promised the witness immunity in exchange for his testimony. State v. Silva, 2008-NMSC-051, 144 N.M. 815, 192 P.3d 1192. Objection must be specific. - The purpose of an objection or motion is to invoke a ruling of the court upon a question or issue, and it is essential that the ground or grounds of the objection or motion be made with sufficient specificity to alert the mind of the trial court to the claimed error or errors, and that a ruling thereon then be invoked. State v. Lopez, 1973-NMSC-041, 84 N.M. 805, 508 P.2d 1292. And clearly stated. - The rule is well established that the ground of an objection to the introduction of evidence must be clearly stated so that the court may intelligently rule upon the objection. State v. Clarkson, 1938-NMSC-012, 42 N.M. 289, 76 P.2d 1161; State v. Compton, 1953-NMSC-036, 57 N.M. 227, 257 P.2d 915; State v. Heisler, 1954-NMSC-032, 58 N.M. 446, 272 P.2d 660; State v. La Boon, 1960-NMSC-118, 67 N.M. 466, 357 P.2d 54; State v. Miller, 1968-NMSC-054, 79 N.M. 117, 440 P.2d 792. The trial court must be clearly alerted to nonjurisdictional error if the point is to be preserved on appeal. State v. Paul, 1969-NMCA-074, 80 N.M. 521, 458 P.2d 596, rev'd on other grounds, 1969-NMSC-160, 80 N.M. 746, 461 P.2d 228, cert. denied, 397 U.S. 1044, 90 S. Ct. 1354, 25 L. Ed. 2d 654 (1970). General objection provides no basis for relief. - Where the record discloses that the objection is general, namely, "as being irrelevant and immaterial," it specifies no basis upon which the answer to a question would be inadmissible. State v. Zarafonetis, 1970-NMCA-064, 81 N.M. 674, 472 P.2d 388), cert. denied, 81 N.M. 669, 472 P.2d 383. The claim of a denial of a fair trial is too general to provide a basis for relief and presents no issue to review. State v. Paul, 1972-NMCA-024, 83 N.M. 527, 494 P.2d 189. And will be ignored on appeal. - The rule is well established that an objection to the introduction of evidence which does not specify the particular ground on which the evidence is objectionable does not call the trial court's attention to the matter to be decided, and on appeal will be treated as if no objection to such evidence had been made. State v. Zarafonetis, 1970-NMCA-064, 81 N.M. 674, 472 P.2d 388, cert. denied, 81 N.M. 669, 472 P.2d 383. A general objection cannot be fairly read as alerting the trial judge to a claim that certain testimony is inadmissible; therefore, such a contention is not properly before the appellate court for review. State v. Duran, 1972-NMCA-059, 83 N.M. 700, 496 P.2d 1096, cert. denied, 83 N.M. 699, 496 P.2d 1095. Unless precise point to be considered previously called to trial court's attention. - Where the precise point considered by the appellate court has been called to the trial court's attention previously, and ruled on, the appellate court will decline to hold that the ambiguity of a second motion at the close of all evidence waived that point. State v. Vallo, 1970-NMCA-002, 81 N.M. 148, 464 P.2d 567. Failure to preserve issue of damages where defendant failed to present any evidence of actual damages. - Where the district court entered a directed verdict on defendants' counterclaim for trespass because it concluded there was no evidence that could support a finding of actual damages in defendants' favor, defendant's argument that the district court's directed verdict was erroneous because proof of actual damages is not a necessary element of a claim for trespass failed, because defendant's trial strategy involved pursuing actual damages for damage they alleged plaintiffs had caused by installing a fence on their property, not an award of nominal damages. Defendants never sought nominal damages, and therefore failed to preserve this issue as a basis for reversal on appeal. Holcomb v. Rodriguez, 2016-NMCA-075, cert. denied. Defendant preserved constitutional claim where, in his motion for reconsideration, he specifically alleged that distinct language within the state constitutional provision justified interpreting it differently than the federal double jeopardy clause, he quoted the final clause of N.M. Const., art. II, § 15, which is distinct from the federal double jeopardy clause, and provided the factual basis necessary for the trial court to rule on the issue. State v. Lynch, 2003-NMSC-020, 134 N.M. 139, 74 P.3d 73. Illegally seized evidence issue preserved though not specifically argued. - Where the defendant contended that the warrant held by police officers who searched a vehicle at the defendant's residence was overbroad and was not supported by probable cause and the search was invalid because the vehicle searched did not belong to defendant, defendant adequately preserved the issue by objecting at trial to the evidence obtained from the search of the vehicle, even though he had not included this argument in his motion to suppress. State v. Ortega, 1992-NMCA-029, 114 N.M. 193, 836 P.2d 639, aff'd, 1994-NMSC-013, 117 N.M. 160, 870 P.2d 122. Mere statement of conclusion does not suffice to present question for review. State v. Holly, 1968-NMCA-075, 79 N.M. 516, 445 P.2d 393; State v. Lopez, 1969-NMCA-057, 80 N.M. 599, 458 P.2d 851, cert. denied, 80 N.M. 607, 458 P.2d 859, 398 U.S. 942, 90 S. Ct. 1860, 26 L. Ed. 2d 279 (1970). It is incumbent upon appellant to affirmatively demonstrate what error, if any, it is contended was committed by the trial court. The mere statement of a conclusion does not suffice to present a question for review. State v. Reyes, 1967-NMCA-023, 78 N.M. 527, 433 P.2d 506. Requested conclusion of law was insufficient. - Where the surviving spouse of the decedent died before the decedent's estate had been distributed; the personal representative of the decedent's estate and of the surviving spouse's estate claimed that the surviving spouse's share of the decedent's estate should be distributed to the personal representative of the surviving spouse's estate rather than directly to the heirs of the surviving spouse and proposed a conclusion of law to that effect; and the personal representative made no objection when the district court decided to distribute the surviving spouse's share of the decedent's estate directly to the heirs of the surviving spouse and agreed to provide a list of heirs to opposing counsel, the personal representative's proposed conclusion of law was not sufficient to alert the district court that it needed to rule on the matter. Duran v. Vigil, 2012-NMCA-121, 296 P.3d 1209, cert. denied, 2012-NMCERT-011. Objection that questions on prior misdemeanor convictions are "irrelevant" deemed substantially specific. - Defense counsel's objection to the prosecutor's questions as to the defendant's prior misdemeanor convictions on grounds of "irrelevancy" was sufficiently specific to alert the trial court and the prosecution to the impropriety of the questioning, since it implicitly asserted the policy behind former Rule 609, N.M.R. Evid. (see now Rule 11-609 NMRA), that is, prior convictions of misdemeanors, not dealing with the veracity of the defendant, simply are irrelevant as to his credibility, and thus defense counsel did not waive this error, despite his failure to cite the proper rule. Albertson v. State, 1976-NMSC-056, 89 N.M. 499, 554 P.2d 661. But not objection to exhibits without claim that jury would be prejudiced. - Where in a motion to suppress the defendant objects to all exhibits on the basis of an asserted illegal search and seizure but he does not, in the motion, claim that the exhibits would inflame or prejudice the jury, the objection as to these exhibits cannot be raised before the appellate court for the first time. State v. Everitt, 1969-NMCA-010, 80 N.M. 41, 450 P.2d 927. 4. TIMELINESS OF OBJECTION. One cannot claim error in absence of timely objection. State v. Trimble, 1967-NMSC-192, 78 N.M. 346, 431 P.2d 488. Pretrial motion in limine failed to preserve objection to actual trial testimony. - In defendant's murder trial, where defense counsel filed a pretrial motion in limine to restrict the testimony of a state's witness, which defense counsel anticipated would involve interpreting cell-phone related records and which defense counsel believed required a qualified expert witness, but where defense counsel failed to make a specific objection to the witness's testimony at trial and failed to invoke a ruling from the court, the challenge to the witness's testimony was not preserved for appellate review, because the motion in limine did not apprise either the opposing party or the district court to any specific alleged error in the witness's actual trial testimony. State v. Carrillo, 2017-NMSC-023. Objection to sufficiency of evidence required at close of all evidence. - Where the defendant challenges identification testimony at the close of the state's case in chief, but does not do so at the close of all the evidence, the question of the sufficiency of the evidence is not properly before the appellate court. State v. Hunt, 1972-NMCA-026, 83 N.M. 546, 494 P.2d 624. Objection to improper closing argument must be made before argument continues. - In order to preserve claimed error for review, an objection to improper closing argument must be timely made. The burden is on the appellant to make his objections known to the court at the earliest time in order to afford the court the opportunity to rule on the matter before allowing the argument to continue. State v. Montoya, 1968-NMCA-069, 80 N.M. 64, 451 P.2d 557, aff'd sub nom. Deats v. State, 1969-NMSC-029, 80 N.M. 77, 451 P.2d 981. Where the defendant fails to object to claimed prejudicial remarks of the state during closing argument to the jury, the claimed error is not subject to review. State v. Barboa, 1973-NMCA-025, 84 N.M. 675, 506 P.2d 1222. Objection to improper court remarks after deliberation commences not timely. - Where defendant's counsel does not object to allegedly improper trial court remarks until after the jury has begun its deliberations, his motion for a mistrial is not timely, and this issue may not be raised on appeal. State v. Wilson, 1974-NMCA-059, 86 N.M. 348, 524 P.2d 520. Issue raised in motion for new trial not timely. - Raising issue on a motion for new trial cannot make up for the failure to preserve issue at trial, where the opportunity has passed to timely correct any error presented by the issue. Freeman v. Fairchild, 2015-NMCA-001, cert. granted, 2014-NMCERT-012. Question or objection must be raised at trial before appellate court may review. - While questions involving fundamental error may be raised for the first time on appeal, a question as to the sufficiency of the evidence authorizing the submission of the case to the jury, or for supporting the verdict, must be raised at the trial. State v. Nuttall, 1947-NMSC-036, 51 N.M. 196, 181 P.2d 808. There must be an objection to incorrect, inconsistent or confusing instructions before the appellate court may review them. State v. Tucker, 1974-NMCA-049, 86 N.M. 553, 525 P.2d 913, cert. denied, 86 N.M. 528, 525 P.2d 888. And trial court ruling must be invoked. - To preserve a question for review it must appear that a ruling or decision by the trial court has been fairly invoked. State v. Garcia, 1971-NMCA-155, 83 N.M. 262, 490 P.2d 1235. But formal assignments not required. - Where an attempt has been made to present points relied on for reversal, an omission to make formal assignments is not jurisdictional. State v. Apodaca, 1938-NMSC-051, 42 N.M. 544, 82 P.2d 641. Duty of counsel to preserve question for review. - This rule imposes on counsel the duty to preserve a question for appellate review by affirmatively showing in the record that a ruling or decision by the trial court was fairly invoked on the point. State v. Casteneda, 1982-NMCA-046, 97 N.M. 670, 642 P.2d 1129. 5. SPECIFIC APPLICATIONS. a. EVIDENCE. Plea agreement did not waive objection to admission of evidence. - Where the "Waiver of Defenses and Appeal" provision of the plea agreement was crossed out; and the child had previously filed a motion to suppress evidence that had been obtained during a search of the child's backpack at school, the child reserved the right to appeal the district court's denial of the child's motion to suppress the evidence. State v. Gage R., 2010-NMCA-104, 149 N.M. 14, 243 P.3d 453. Improper closing arguments of counsel. - Where appellant's attorney argued that the jury award against appellant was based on passion and prejudice that resulted from improper comments that were made during closing argument by appellee's attorney and appellant did not object to the comments during the closing argument and request an appropriate curative instruction or other relief, appellant did not preserve the issue and the appellate court would not address the issue. Sandoval v. Baker Hughes Oilfield Operations, Inc., 2009-NMCA-095, 146 N.M. 853, 215 P.3d 791. Violations of Indian Child Welfare Act of 1978. - Where the parent, who was a member of the Navajo Nation, appealed from an adjudication of child neglect, and where at the adjudicatory hearing the parent did not raise the issue of the failure of CYFD to provide evidence as required by the Indian Child Welfare Act of 1978, 25 U.S.C. §§ 1901-1963 (2006), the parent's failure to expressly raise the issue at the adjudicatory hearing did not prevent the Supreme Court from reviewing the record to determine if the district court fulfilled its obligation to abide by the requirements of the Indian Child Welfare Act. State of N.M. ex rel. Children, Youth & Families Dep't v. Marlene C., 2009-NMCA-058, 146 N.M. 588, 212 P.3d 1142, cert. granted, 2009-NMCERT-006. Although the defendant failed to object to the admission of evidence of notice of alibi under Rule 5-508(E) NMRA, the defendant's later arguments concerning whether the trial court could properly cure its own error under the rule, and the court's response to those arguments, sufficiently preserved the issue for review on appeal. State v. O'Neal, 2008-NMCA-022, 143 N.M. 437, 176 P.3d 1169. Ground for objection to be specified. - Objection to the introduction of evidence which does not specify the particular ground on which the evidence is objectionable does not call the trial court's attention to the matter to be decided, and on appeal will be treated as if no objection to such evidence had been made. Williams v. Vandenhoven, 1971-NMSC-029, 82 N.M. 352, 482 P.2d 55; Ash v. H.G. Reiter Co., 1967-NMSC-149, 78 N.M. 194, 429 P.2d 653. Renewal of motion for directed verdict. - Defendant who, at the close of evidence, renewed its motion for directed verdict on punitive damages, causing the district court to again deny the motion, fairly invoked a ruling on the renewed motion, and therefore did not waive its right to challenge the sufficiency of the evidence on the punitive damages issue. Gillingham v. Reliable Chevrolet, 1998-NMCA-143, 126 N.M. 30, 966 P.2d 197. Absent offer of proof, exclusion of evidence cannot be attacked on appeal. State ex rel. State Hwy. Comm'n v. Steinkraus, 1966-NMSC-134, 76 N.M. 617, 417 P.2d 431. Proper tender or offer of proof is essential to the preservation of error in improperly excluding evidence. Wood v. Citizens Std. Life Ins. Co., 1971 -NMSC-011, 82 N.M. 271, 480 P.2d 161; Williams v. Yellow Checker Cab Co., 1967-NMSC-099, 77 N.M. 747, 427 P.2d 261. Where testimony excluded when defendant's objections were sustained was not preserved by exceptions to the trial court's rulings, and plaintiff neither made offer of proof to preserve the claimed error nor identified or offered in evidence claimed exhibits, his claim of error was not subject to review. Mantz v. Follingstad, 1972-NMCA-164, 84 N.M. 473, 505 P.2d 68. Purpose of proffered evidence to be indicated. - Defendant who claimed that trial court refused portions of a deposition which contained inconsistencies, but failed to alert court that she was introducing inconsistencies for impeachment purposes, could not first raise issue on appeal. Naumburg v. Wagner, 1970-NMCA-019, 81 N.M. 242, 465 P.2d 521. Request for findings required for review of evidence. - Where a defendant made no request for findings nor objections to the court's findings, he was not entitled to a review of the evidence on appeal. Citty v. Citty, 1974-NMSC-058, 86 N.M. 345, 524 P.2d 517; Van Orman v. Nelson, 1967-NMSC-069, 78 N.M. 11, 427 P.2d 896. Where appellant did not submit a requested finding, no error was preserved for review by supreme court. Nosker v. Western Farm Bureau Mut. Ins. Co., 1970 -NMSC-046, 81 N.M. 300, 466 P.2d 866. Appellant who fails to timely request findings cannot obtain a review of the evidence on appeal. Ellis v. Parmer, 1966-NMSC-161, 76 N.M. 626, 417 P.2d 436. Along with requested conclusions. - There can be no review of the evidence on appeal where the party seeking the review has failed to submit requested findings of fact and conclusions of law. Wagner Land & Inv. Co. v. Halderman, 1972-NMSC-019, 83 N.M. 628, 495 P.2d 1075; McNabb v. Warren, 1971-NMSC-109, 83 N.M. 247, 490 P.2d 964. And challenge to objectionable findings and conclusions. - Where appellants cited as error the trial court's refusal of certain findings and conclusions along with a certain conclusion of law made by the court, but did not question or challenge the findings which supported the challenged conclusion, they made a fatal error. Lerma v. Romero, 1974-NMSC-089, 87 N.M. 3, 528 P.2d 647. Where finding that service by mail was necessary was not excepted to, an assignment that the affidavit of mailing did not support the finding did not present a jurisdictional question. Miera v. Sammons, 1926-NMSC-020, 31 N.M. 599, 248 P. 1096. Sua sponte exclusion of evidence. - Although an appellate court is not required to review every sua sponte exclusion of evidence that is made without a timely objection of counsel, Rule 11-103 and Paragraph A of this rule clearly permit review of a case where the substantial rights of defendant were affected by the trial court's ruling and the substance of the evidence to be admitted was made known or was apparent to the court. State v. Balderama, 2004-NMSC-008, 135 N.M. 329, 88 P.3d 845. Evidence concerning character for untruthfulness. - Where there was no objection on the grounds that a specific instance of the defendant's conduct was inadmissible concerning character for untruthfulness, this matter, raised for the first time on appeal, was not considered. State v. Sacoman, 1988-NMSC-077, 107 N.M. 588, 762 P.2d 250. Substantiality of evidence only considered when raised below. - Appellate court will not determine whether a finding or judgment of the court is supported by substantial evidence, unless the question has been submitted to or decided by the trial court. State v. Board of Trustees, 1927-NMSC-009, 32 N.M. 182, 253 P. 22; Blacklock v. Fox, 1919-NMSC-040, 25 N.M. 391, 183 P. 402; Grant v. Booker, 1926-NMSC-045, 31 N.M. 639, 249 P. 1013. In order to have question of whether a finding of fact made by district court was supported by substantial evidence reviewed on appeal, attention of district court must be called thereto by an exception or objection to such finding or by request of the objecting party for a finding of fact upon the same subject. Wells v. Gulf Ref. Co., 1938 -NMSC-033, 42 N.M. 378, 79 P.2d 921. Requested finding sufficient preservation of issue. - Defendant's requested finding of fact, which presented issue in manner contrary to court's finding, sufficiently called attention of court to her theory of case and preserved the issue for review. Crosby v. Helmstetler, 1941-NMSC-053, 46 N.M. 129, 123 P.2d 384. Exception to legal conclusion based upon admitted facts was sufficient to present the question to the supreme court for review. Bays v. Albuquerque Nat'l Bank, 1929-NMSC-026, 34 N.M. 20, 275 P. 769. Request for findings and conclusions is not required upon summary judgment to preserve points for review. DeArman v. Popps, 1965-NMSC-026, 75 N.M. 39, 400 P.2d 215. Evidence not presented to trial judge not reviewable. - A judicial review of an order from which a claimant appeals cannot be based on evidence in a supplemental record on appeal containing evidence that had not been presented to the worker's compensation judge at the time the order was issued. Gallegos v. City of Albuquerque, 1993-NMCA-050, 115 N.M. 461, 853 P.2d 163. Question as to right to confront witness not preserved for review. State v. Olguin, 1994-NMCA-050, 118 N.M. 91, 879 P.2d 92, aff'd in part, 1995-NMSC-077, 120 N.M. 740, 906 P.2d 731. Defendant failed to preserve Miranda issue. - Where a police officer testified to statements made by defendant during a post-arrest interrogation; at trial, defendant did not raise the issue of voluntariness or request suppression of the statements; defendant made only a foundational objection as to whether the officer had complied with the procedural requirements of Miranda; and on appeal, defendant took no issue with the court's determination that an adequate foundation had been laid as the Miranda procedural requirements and argued only that the statements were not voluntary, defendant failed to preserve the issue of voluntariness for review on appeal. State v. Coleman, 2011-NMCA-087, 150 N.M. 622, 264 P.3d 523, cert. denied, 2011-NMCERT-008, 268 P.3d 513. Where the issue was not raised in defendant's suppression motion, defendant did not alert the state or the court that this was an issue before he presented his witnesses, defendant mentioned the testimony in closing argument citing no authority for the point and then abruptly changed the subject, and never asked for a ruling on the matter. State v. Ponce, 2004-NMCA-137, 136 N.M. 614, 103 P.3d 54, cert. granted, 2004-NMCERT-012. Issue of whether victim falls within statutory definition of "household member" was fairly presented below where the district court was alerted to the question of whether victim meets the definition of "household member," the state had an opportunity to respond and argue evidence relating to the issue and the district court ruled on the issue by finding evidence to support each element of the offense beyond a reasonable doubt. State v. Montoya, 2005-NMCA-005, 136 N.M. 674, 104 P.3d 540, cert. granted, 2005-NMCERT-001. b. INSTRUCTIONS. Two methods of preserving error. - In order to preserve error to a given instruction, a party is required either to tender a correct instruction and alert the trial court to the fact that the tendered instruction corrected the defect complained of, or point out the specific vice in the instruction given by proper objection. Lewis v. Rodriguez, 1988-NMCA-062, 107 N.M. 430, 759 P.2d 1012. Objection to instructions required for review. - Appellant may not challenge on review the correctness of instructions to which he took no exceptions or only a general exception. Gerety v. Demers, 1974-NMSC-010, 86 N.M. 141, 520 P.2d 869. Where neither party objected to the instruction, the court would not consider alleged error therein. Panhandle Irrigation, Inc. v. Bates, 1968-NMSC-024, 78 N.M. 706, 437 P.2d 705. At least as to nonfundamental matters. - Error in failure to give incidental instructions, even from Uniform Jury Instruction, and even though mandatory, must be brought to attention of trial court in timely fashion if it is to be preserved as error, at least as to instructions which do not cover the fundamental law applicable to the facts of the case. City of Albuquerque v. Ackerman, 1971-NMSC-032, 82 N.M. 360, 482 P.2d 63. Objection to instruction must be specific. - Where the substance of the only objection made to the court's instructions cannot reasonably be construed as an objection to a specific instruction, this objection will not be heard for the first time on appeal. State v. Flowers, 1971-NMSC-091, 83 N.M. 113, 489 P.2d 178. Defect in instructions must be specified. - Objections to instructions which fail to point out specifically the claimed vice or defect are insufficient to preserve the error for review. McBee v. Atchison, T. & S.F. Ry., 1969 -NMCA-063, 80 N.M. 468, 457 P.2d 987; Gonzales v. Allison & Haney, Inc., 1963-NMSC-041, 71 N.M. 478, 379 P.2d 772. Supreme court could not review the form of the instruction where no specific objection was made to alert the mind of the trial court to the specific defects contained therein. Horrocks v. Rounds, 1962-NMSC-048, 70 N.M. 73, 370 P.2d 799. To preserve error on appeal as to an instruction, the objection must specifically guide the mind of the trial court to the claimed vice. Objections in general terms are not sufficient to advise the court of the particular claim of error so that it may be corrected. Poorbaugh v. Mullen, 1982-NMCA-141, 99 N.M. 11, 653 P.2d 511. In an action by a tenant against a landlord for violation of the Owner-Resident Relations Act, since the landlord did not tender correct or adequate instructions on his theory that the act did not apply because the tenant was an employee, and since the amendment making the act applicable to written agreements only was not brought to the attention of the court, unpreserved errors in the jury instructions that were given covering these matters were not reviewable since they were not fundamental and did not involve the public interest. Gracia v. Bittner, 1995-NMCA-064, 120 N.M. 191, 900 P.2d 351. Objection to instructions required for review. - In prosecution for criminal sexual contact and penetration of a minor, although the defendant asked the court for a clarification of the instruction, this request was insufficient to make the court aware of the defendants objection that he did not receive fair notice of the charges because of the long span of time in the elements of the instruction during which the offenses were committed. State v. Nichols, 2006-NMCA-017, 139 N.M. 72, 128 P.3d 500. Tender of instruction preserved defense for review on appeal. - Where defendant was charged with resisting, evading or obstructing a law enforcement officer; defendant provided evidence that defendant did not know that the persons pursuing defendant were police officers and requested an instruction, which required the state to prove that defendant knew the persons pursuing defendant were peace officers; the trial court refused the instruction and defendant did not object; and the trial court acknowledged and recognized that the lack of knowledge was one of the cornerstone issues of the case, defendant's requested instruction was sufficient to preserve the lack of knowledge issue for appeal. State v. Akers, 2010-NMCA-103, 149 N.M. 53, 243 P.3d 757. Tender of proper instruction required to preserve error for review. - Where defendant was charged with fraudulent refusal to return leased property in violation of Section 30-16-40 NMSA 1978; the trial court instructed the jury on all of the essential elements of the crime, but did not include a definitional instruction clarifying the meaning of the term "intent to defraud"; defendant did not ask the court to offer a definitional instruction; and defendant asked the court to include language from the jury instruction for the crime of fraud which required the state to prove that defendant committed fraud in obtaining the property as well as in refusing to return the property, defendant did not preserve the argument that the court should have given a definitional instructional on the meaning of "intent to defraud". State v. Rodarte, 2011-NMCA-067, 149 N.M. 819, 255 P.3d 397, cert. denied, 2011-NMCERT-005, 150 N.M. 666, 265 P.3d 717. In order to preserve error for review because of the failure of the trial court to instruct upon a specific issue or defense, the defendant must tender a proper instruction on the issue. State v. Gonzales, 1971-NMCA-007, 82 N.M. 388, 482 P.2d 252, cert. denied, 82 N.M. 377, 482 P.2d 241. By tendering a proposed jury instruction to the court, defendant adequately preserved his right to appeal on the grounds that the instructions ultimately used violated his right to due process under the state constitution. State v. Sarracino, 1998-NMSC-022, 125 N.M. 511, 964 P.2d 72. As court alerted by tender of proper instruction. - Where the court's instruction fails to cover the elements of insanity and the defendant's requested instruction contains those elements, the submission of a proper instruction by the defendant alerts the trial court to the omission in its instruction. State v. Montano, 1972-NMCA-021, 83 N.M. 523, 494 P.2d 185. Failure to instruct on element of offense. - The failure of a trial court to properly instruct a jury on the essential elements of an offense constitutes fundamental error which may be raised for the first time on appeal. State v. Peterson, 1998-NMCA-049, 125 N.M. 55, 956 P.2d 854. 6. WAIVER OF QUESTIONS NOT RAISED. Lay opinion testimony of police officer. - Because under Paragraph A of this rule, an issue may not be raised for the first time on appeal, where review of the record indicates that defendant did not raise any objection concerning the lay opinion testimony of police officer nor did she claim fundamental or plain error, the appellate court may not address this issue. State v. Watchman, 2005-NMCA-125, 138 N.M. 488, 122 P.3d 855, cert. denied, 2005-NMCERT-011. Award of attorney fees under Insurance Code. - Because the issue was not preserved for review, whether attorney fees were properly awarded under the Insurance Code would not be considered on appeal. Chavarria v. Fleetwood Retail Corp., 2005-NMCA-082, 137 N.M. 783, 115 P.3d 799, cert. granted, 2005-NMCERT-006. Claim not raised in trial court is not properly before court of appeals for review.. State v. Raburn, 1966-NMSC-174, 76 N.M. 681, 417 P.2d 813; State v. Martinez, 1967-NMSC-103, 77 N.M. 745, 427 P.2d 260; State v. Lujan, 1968-NMCA-079, 79 N.M. 525, 445 P.2d 749; State v. Faulkenberry, 1971-NMCA-061, 82 N.M. 553, 484 P.2d 773; State v. Deats, 1971-NMCA-089, 82 N.M. 711, 487 P.2d 139; State v. Duran, 1972-NMCA-059, 83 N.M. 700, 496 P.2d 1096, cert. denied, 83 N.M. 699, 496 P.2d 1095; State v. Martinez, 1973-NMCA-040, 84 N.M. 766, 508 P.2d 36; State v. Dutchover, 1973-NMCA-052, 85 N.M. 72, 509 P.2d 264; State v. Puga, 1973-NMCA-079, 85 N.M. 204, 510 P.2d 1075; State v. Jordan, 1971-NMCA-054, 85 N.M. 125, 509 P.2d 892; State v. Grijalva, 1973-NMCA-061, 85 N.M. 127, 509 P.2d 894; State v. O'Dell, 1973-NMCA-124, 85 N.M. 536, 514 P.2d 55; State v. Romero, 1974-NMCA-015, 86 N.M. 99, 519 P.2d 1180; State v. Bolen, 1976-NMCA-005, 88 N.M. 647, 545 P.2d 1025, cert. denied, 89 N.M. 5, 546 P.2d 70; State v. Hogervorst, 1977-NMCA-057, 90 N.M. 580, 566 P.2d 828, cert. denied, 90 N.M. 636, 567 P.2d 485; State v. Herrera, 1978-NMCA-048, 92 N.M. 7, 582 P.2d 384, cert. denied, 91 N.M. 751, 580 P.2d 972; State v. Robinson, 1979-NMCA-001, 93 N.M. 340, 600 P.2d 286, cert. denied, 92 N.M. 532, 591 P.2d 286, overruled on other grounds Santillanes v. State, 1993-NMSC-012, 115 N.M. 215, 849 P.2d 358; Gutierrez v. Albertsons, Inc., 1991-NMCA-135, 113 N.M. 256, 824 P.2d 1058. The failure of the defendant to point out claimed errors and to bring them to the attention of the trial court prevents his relying on them for the first time on appeal. State v. Lott, 1963-NMSC-219, 73 N.M. 280, 387 P.2d 855. An appellate court only reviews adverse rulings and decisions protested below in a manner which alerts the mind of the trial court to the claimed error. The failure of the defendant to point out claimed errors and to bring them to the attention of the trial court prevents his relying on them for the first time on appeal. State v. Tapia, 1968-NMCA-048, 79 N.M. 344, 443 P.2d 514. Where no objection on given grounds is ever made, and no ruling or decision of the trial court thereon is ever fairly invoked, these questions cannot be first raised on appeal. State v. Gray, 1968-NMCA-059, 79 N.M. 424, 444 P.2d 609. Where the objections made at trial fail to include some of the grounds urged on appeal, these grounds cannot properly be first urged in the appellate court. State v. Sisneros, 1968-NMSC-175, 79 N.M. 600, 446 P.2d 875. Where a claim of error is not included in the grounds for objection in the trial court, it will not be considered in the appellate court. State v. Carlton, 1972-NMCA-015, 83 N.M. 644, 495 P.2d 1091, cert. denied, 83 N.M. 631, 495 P.2d 1078. Where the state did not argue for a good-faith exception to the exclusionary rule, the issue was not addressed on appeal. State v. Therrien, 1990-NMCA-060, 110 N.M. 261, 794 P.2d 735, overruled in part on other grounds State v. Barker, 1992-NMCA-117, 114 N.M. 589, 844 P.2d 839. Thus, unraised question deemed spurious. - When no question of the defendant's competency was ever raised in the case being appealed, the issue is spurious. State v. Burrell, 1976-NMCA-025, 89 N.M. 64, 547 P.2d 69. The defendant's contention on appeal that a continuation of the trial in his absence constituted error because the trial court did not conduct an inquiry into the reason for his absence is spurious where no such contention was raised in the trial court. State v. Burrell, 1976-NMCA-025, 89 N.M. 64, 547 P.2d 69. As, where no court ruling, no error preserved for review. - Where no objection is made and no ruling of the trial court is invoked as to claimed errors, they are not preserved for review. State v. Reynolds, 1968-NMCA-024, 79 N.M. 195, 441 P.2d 235. And this includes claimed errors of constitutionality. - The failure of the defendant to point out claimed errors of constitutionality and to bring them to the attention of the trial court prevents his relying on them for the first time on appeal. The sole exceptions to this rule are questions of jurisdiction and fundamental error. City of Portales v. Shiplett, 1960-NMSC-095, 67 N.M. 308, 355 P.2d 126; State ex rel. Human Servs. Dept. v. Martin, 1986-NMCA-041, 104 N.M. 279, 720 P.2d 314. Supreme court would refuse to consider the constitutionality of licensing act where such matter was raised neither in the trial court nor in the brief in chief. Johnson v. Sanchez, 1960-NMSC-029, 67 N.M. 41, 351 P.2d 449. Where the issue of constitutionality was not raised in the trial court nor in the supreme court until permission was sought to file the second motion for rehearing, question would not be permitted on review. State Hwy. Comm'n v. Southern Union Gas Co., 1959-NMSC-011, 65 N.M. 217, 334 P.2d 1118. Plaintiff's claim that, if the applicable limitation period expired before an alleged injury developed or manifested itself, then the limitation statute violated either due process or equal protection was not considered on appeal because it was not raised in the trial court. Irvine v. St. Joseph Hosp., 1984-NMCA-107, 102 N.M. 572, 698 P.2d 442, cert. quashed, 102 N.M. 564, 698 P.2d 434 (1985). Challenge to constitutionality of statute as being a rule of evidence outside the purview of the legislature's power, which was not raised before the trial court, would not be considered upon review. Keeth Gas Co. v. Jackson Creek Cattle Co., 1977-NMSC-087, 91 N.M. 87, 570 P.2d 918. Proposition that construction of statutes approved by district court would violate certain constitutional provisions was not subject to appellate review, where ruling thereon had not been invoked in trial court. In re Estate of Reilly, 1957-NMSC-095, 63 N.M. 352, 319 P.2d 1069. And violations of constitutional rights. - Where record did not indicate that contention that dismissal of case after demand for jury trial constituted violation of constitutional rights was raised in trial court or passed on thereby, it would not be considered by the supreme court. Reger v. Preston, 1966-NMSC-234, 77 N.M. 196, 420 P.2d 779. The defendant's claims concerning double jeopardy, raised for the first time on appeal, not having been presented to the trial court, will not be considered. State v. Tafoya, 1970-NMCA-088, 81 N.M. 686, 472 P.2d 651, cert. denied, 81 N.M. 721, 472 P.2d 984. The defendant who seeks to raise an alleged search and seizure issue for the first time in the appellate court cannot do so. State v. Colvin, 1971-NMCA-006, 82 N.M. 287, 480 P.2d 401. Where the defendant's claims that his constitutional rights were violated were neither presented to nor ruled on by the trial court, they may not be raised for the first time on appeal. City of Hobbs v. Sparks, 1973-NMCA-082, 85 N.M. 277, 511 P.2d 763, cert. denied, 85 N.M. 265, 511 P.2d 751. An issue of illegal search and seizure not presented to the trial court cannot be raised for the first time on appeal. State v. Aragon, 1972-NMCA-129, 84 N.M. 254, 501 P.2d 698. Where the defendant's motion to suppress is directed to a premises search, and defendant never raises, and does not invoke, a ruling of the trial court concerning the search of his closed suitcase, he may not raise that issue for the first time on appeal. State v. Mascarenas, 1974-NMCA-100, 86 N.M. 692, 526 P.2d 1285. Where the defendant's contention that the manner in which police officers executed a search warrant was improper is never brought to the attention of the trial court, the defendant may not raise it in the appellate court without first demonstrating plain error. State v. Quintana, 1975-NMCA-034, 87 N.M. 414, 534 P.2d 1126, cert. denied, 88 N.M. 28, 536 P.2d 1084, 423 U.S. 832, 96 S. Ct. 54, 46 L. Ed. 2d 50 (1975). Where the defendant at the hearing on his motion to suppress does not contend that the officers had no reason or no probable cause to seize contraband because its identity was not apparent on a mere surface inspection, the appeals court cannot properly consider the question without that evidence being before it for review. State v. Alderete, 1976-NMCA-001,88 N.M. 619, 544 P.2d 1184. Where a claim that an item which was seized did not appear to be contraband, evidence or fruits of the crime, and that the police may not seize an article or item which does not appear to be such prior to arrest, is not raised before the children's court, it will not be considered on appeal. In re Doe, 1976-NMCA-011, 89 N.M. 83, 547 P.2d 566, cert. denied, 89 N.M. 206, 549 P.2d 284. When a theory supporting a warrantless search is not relied upon by the state in the trial court, it will not be considered on appeal. State v. White, 1980-NMCA-102, 94 N.M. 687, 615 P.2d 1004, overruled on other grounds, State v. Apodaca, 1991-NMCA-048, 112 N.M. 302, 814 P.2d 1030. The defendant may not raise the issue of the waiver of his rights to remain silent for the first time on appeal. State v. Sexton, 1971-NMCA-052, 82 N.M. 648, 485 P.2d 982, cert. denied, 82 N.M. 639, 485 P.2d 973. Arguments raised only in docketing statement of interlocutory appeal. - Where a party raised arguments in a docketing statement submitted to the court of appeals, which was filed after the district court first entered partial summary judgment in favor of the opposing party, but the court of appeals refused to hear the appeal at that time because no final order had been issued, the party failed to preserve the arguments because the district court was not required to respond to arguments raised before the court of appeals, and therefore the district court never ruled upon them. Maralex Resources, Inc. v. Gilbreath, 2003-NMSC-023, 134 N.M. 308, 76 P.3d 626. Ineffective assistance of counsel. - Where mother's attorney raised due process claim at the final termination hearing, and at closing, argued that termination was improper because mother was denied her due process right to participate in the earlier hearings, and the court ruled that the claim was precluded by the fact that mother was present at the termination hearing to defend against the charges, and because mother's absence was based on ineffective assistance of counsel, not due process, under these facts, the appellate court was sufficiently alerted to the claimed error and mother preserved her claim. State ex rel. Children, Youth & Families Dep't. v. Maria C., 2004-NMCA-083, 136 N.M. 53, 94 P.3d 796. Defendant abandoned his conditional pretrial request to bar television coverage of his allocution by failing to pursue the issue and by later failing to mention any potential problem with media coverage in his motion to allocute. State v. Clark, 1989-NMSC-010, 108 N.M. 288, 772 P.2d 322, cert. denied, 493 U.S. 923, 110 S. Ct. 291, 107 L. Ed. 2d 271 (1989), overruled on other grounds, State v. Henderson, 1996-NMCA-089, 109 N.M. 655, 789 P.2d 603. Objection to confession's admission cannot be considered if not made in trial court. State v. Layton, 1927-NMSC-010, 32 N.M. 188, 252 P. 997. Nor contention that admission procured by deception. - Where the defendant's contention that the police told him "it might go easier" if he would admit to the crime is never raised or ruled on by the trial court, it will not be considered on appeal. State v. Williams, 1972-NMCA-011, 83 N.M. 477, 493 P.2d 962. Nor claim of custodial interrogation without consent. - Where the defendant's claim that an arresting officer engaged in custodial interrogation following a clear indication from the defendant that he did not wish to make a statement is never presented to the trial court, it is not properly before the appellate court for review. State v. Rhea, 1974-NMCA-030, 86 N.M. 291, 523 P.2d 26, cert. denied, 86 N.M. 281, 523 P.2d 16. Nor contention that waiver of counsel invalid. - Where the contention that defendant's waiver form as to the presence of counsel was not countersigned by a district public defender is neither raised in the trial court nor briefed and supported by authority on appeal, it will not be considered by the appellate court. State v. Ramirez, 1976-NMCA-101, 89 N.M. 635, 556 P.2d 43, overruled on other grounds, City of Albuquerque v. Haywood, 1998-NMCA-029, 124 N.M. 661, 954 P.2d 93, cert. denied, 124 N.M. 589, 953 P.2d 1087. Nor issue of psychological coercion. - Where the defendant does not invoke a ruling of the trial court on the issue of psychological coercion, no issue for review is presented on appeal. State v. Harrison, 1970-NMCA-071, 81 N.M. 623, 471 P.2d 193, cert. denied, 81 N.M. 668, 472 P.2d 382. Nor issue of delay. - Where no issue is raised in the trial court concerning delay, it is not preserved for review. State v. Ford, 1970-NMCA-061, 81 N.M. 556, 469 P.2d 535. Nor reasons opposing joinder. - Where the defendant asserts and relies upon as the basis for his opposition to joinder the claim that confessions, particularly his own, were involuntarily made, he cannot later assert other and distinct grounds in opposition to joinder. State v. Fagan, 1967-NMCA-032, 78 N.M. 618, 435 P.2d 771. Where a claim of misjoinder is not presented to the trial court, it cannot be raised on appeal for the first time. State v. Everitt, 1969-NMCA-010, 80 N.M. 41, 450 P.2d 927. Nor contentions as to severance. - Where the contentions of defendants for a severance have not been presented to the trial court and are raised at appellate level for the first time, these contentions have not been preserved for review. State v. Harrison, 1970-NMCA-025, 81 N.M. 324, 466 P.2d 890. Nor right to disqualify judge. - Not having taken precaution to preserve his right to disqualify the judge by timely filing an affidavit of disqualification, the defendant cannot complain on appeal. State v. Lucero, 1971-NMCA-015, 82 N.M. 367, 482 P.2d 70. Nor claim of unauthorized participation of attorney general in prosecuting case. - Where the defendant makes no objection during the trial to the attorney general's participation, the defendant's claim that the attorney general has no authority to prosecute cases that arise in a particular county is without merit on appeal. State v. Tijerina, 1972-NMCA-169, 84 N.M. 432, 504 P.2d 642, aff'd, 1973-NMSC-105, 86 N.M. 31, 519 P.2d 127, cert. denied, 417 U.S. 956, 94 S. Ct. 3085, 41 L. Ed. 2d 674 (1974). Nor claim that written jury waiver required. - Where the defendant does not claim in his motion for a new trial that his waiver of a 12-person jury was ineffective because not in writing, and where his claim that a written waiver is required is asserted for the first time on appeal, the claim is not entitled to appellate review because the claim that the waiver be in writing is not a question which can be raised for the first time on appeal. State v. Pendley, 1979-NMCA-036, 92 N.M. 658, 593 P.2d 755. Nor irregularities in empaneling juries. - The appellant cannot raise for the first time on appeal the disqualification of a juror on the grounds of nonresidence unless it appears this was not known to him at the time of trial; irregularities in empaneling of juries, not objected to in the trial court, cannot be reviewed on appeal. State v. Aull, 1967-NMSC-233, 78 N.M. 607, 435 P.2d 437, cert. denied, 391 U.S. 927, 88 S. Ct. 1829, 20 L. Ed. 2d 668 (1968). Nor claim of privilege. - The defendant cannot on appeal be heard to complain that a communication made by him to a probation and parole officer in the course of a presentence investigation was privileged, when no claim of privilege was ever raised in the trial court. State v. Silva, 1967-NMCA-008, 78 N.M. 286, 430 P.2d 783. Issue of witness intimidation by trial court cannot initially be raised on appeal. - The defendant cannot raise the issue of witness intimidation by the trial court for the first time upon appeal. State v. Martinez, 1982-NMCA-137, 99 N.M. 48, 653 P.2d 879. Nor question of competency of witness. - The question of the competency of a witness cannot be raised for the first time on appeal. State v. Manlove, 1968-NMCA-023, 79 N.M. 189, 441 P.2d 229, cert. denied, 79 N.M. 159, 441 P.2d 57. Burden on defendant to make objection to improper remarks in trial court. - If a defendant is of the opinion remarks by the prosecutor exceed the bounds of propriety, the burden is on him to make objection and call the objectionable matter to the attention of the trial court. Failure to do so results in failure to preserve the error, if the error was committed. State v. Polsky, 1971-NMCA-011, 82 N.M. 393, 482 P.2d 257, cert. denied, 82 N.M. 377, 482 P.2d 241; 404 U.S. 1015, 92 S. Ct. 688, 30 L. Ed. 2d 662 (1972); State v. Riggsbee, 1973-NMSC-109, 85 N.M. 668, 515 P.2d 964. And failure to object waives erroneous trial remarks. - The failure to make a timely objection concerning an alleged error because of erroneous remarks made during the trial will prevent the defendant from forming a basis for errors at the appellate level. State v. Montoya, 1968-NMCA-069, 80 N.M. 64, 451 P.2d 557, aff'd sub nom. Deats v. State, 1969-NMSC-029, 80 N.M. 77, 451 P.2d 981. Even if it is conceded that the prosecutor's argument in some particulars exceeded the bounds of propriety, the defendant is in no position to complain where no objections were made to any of the arguments about which he complains on appeal. If he feels the remarks by the prosecutor exceeded the bounds of propriety, the burden is on him to make objection at the time the remarks were made, and not wait until the trial was concluded and then seek relief by asking that the verdict be set aside or that the judgment entered thereon be reversed on appeal. State v. Victorian, 1973-NMSC-008, 84 N.M. 491, 505 P.2d 436; State v. Seaton, 1974-NMSC-067, 86 N.M. 498, 525 P.2d 858. Errors in admission of evidence not raised in trial court not renewable. - The general rule is that issues not raised in the trial court will not be considered on appeal. This rule applies to evidence which is "erroneously" admitted at trial without objection and then is complained of on appeal. State v. Lopez, 1972-NMCA-157, 84 N.M. 402, 503 P.2d 1180. Nor claim that questions were improper. - The defendant cannot raise for the first time on appeal his claim that the questions to which he did not object and which he answered were prejudicial. State v. Sharpe, 1970-NMCA-078, 81 N.M. 637, 471 P.2d 671. A defendant who exercises his right not to incriminate himself by his silence has no obligation to make any explanation of his activities to the police, and the prosecutor's questions at trial as to whether he has given exculpatory information to the police are clearly improper but is not reversible error where no issue is raised as to their propriety at trial. State v. Lopez, 1972-NMCA-157, 84 N.M. 402, 503 P.2d 1180. Nor claim that nonadmitted evidence was considered by court. - Where workmen's compensation claimant made no objection to trial court's reading of depositions not admitted into evidence, he was not in position to raise the issue for the first time on appeal; in any event, no prejudice was shown. Hay v. New Mexico State Hwy. Dep't, 1959-NMSC-062, 66 N.M. 145, 343 P.2d 845. Nor lack of proper foundation for admitting expert testimony. - Where the issue of lack of proper foundation for the admission of the testimony of a doctor is raised for the first time on appeal, not having been called to the attention of the trial court, it is therefore not properly preserved and may not be raised for the first time on appeal. State v. Sweat, 1967-NMCA-021, 78 N.M. 512, 433 P.2d 229. Where the testimony of police officers concerning their identification of the odor of marijuana emanating from the defendant's vehicle is not the subject of objection or question by the defendant and there is not the slightest suggestion at the hearing on a motion to suppress or at trial that the officers lacked the ability, or qualifications, to identify marijuana by odor, the court of appeals errs in ruling on the lack of foundation as to the officer's expertise, since only jurisdictional or fundamental errors will be considered on appeal, unless raised or presented in the trial court. State v. Bidegain, 1975-NMSC-060, 88 N.M. 466, 541 P.2d 971. Nor claim that foundational requirements for admitting inculpatory statements not met. - Absent some contemporaneous challenge to the foundational requirements for the admission of inculpatory statements in the trial court, an appellate claim that foundational requirements were not met will not be reviewed. State v. Gallegos, 1978-NMCA-121, 92 N.M. 336, 587 P.2d 1347. Nor error in admitting extrajudicial identification. - Where the appellant does not move to suppress evidence concerning extrajudicial identification, does not object to this testimony at trial, does not move to strike this testimony and in no way invokes a ruling of the trial court on the admissibility of this testimony, he cannot rely on such claimed error for the first time on appeal. State v. Tapia, 1968-NMCA-048, 79 N.M. 344, 443 P.2d 514. Nor question on identification of felony relied upon in prosecution for felony-murder. - Where the defendant makes no requests at the trial level for further identification or definition of the felony relied upon by the state in its prosecution for felony-murder, he cannot be heard on that question on appeal. State v. Flowers, 1971-NMSC-091, 83 N.M. 113, 489 P.2d 178. Nor error as to testimony pertaining to previous criminal behavior. - Where no objection is made to testimony pertaining to a previous criminal offense, the error is not preserved for review. State v. Gutierrez, 1968-NMCA-090, 79 N.M. 732, 449 P.2d 334, cert. denied, 80 N.M. 33, 450 P.2d 633. Where the defendant makes no objection to a reference in the testimony of a witness to the fact that the defendant has been previously confined in a penitentiary, he cannot be heard to complain for the first time on appeal. State v. Webb, 1970-NMCA-055, 81 N.M. 508, 469 P.2d 153. Nor error as to witnesses' answers. - Where the defendant at no time objects to any answer given by witnesses, no error is preserved for review. State v. Sedillo, 1969-NMCA-107, 81 N.M. 47, 462 P.2d 632, cert. denied, 81 N.M. 40, 462 P.2d 625. Nor error in admitting statements made in police custody. - The defendant's contentions that it was error for the trial court to admit various oral and written statements made by him after he was in the custody of the police cannot be raised on appeal where these issues were not raised at trial. State v. Dosier, 1975-NMCA-031, 88 N.M. 32, 536 P.2d 1088, cert. denied, 88 N.M. 28, 536 P.2d 1084. Nor inadmissibility of prior convictions. - Where the defendant does not assert the inadmissibility of prior convictions of crimes punishable by imprisonment for less than one year, this issue may not be raised for the first time on appeal. State v. Cardona, 1974-NMCA-052, 86 N.M. 373, 524 P.2d 989, cert. denied, 86 N.M. 372, 524 P.2d 988. Nor error in exclusion of witnesses. - Where the defendant fails to furnish the state a list of the names and addresses of the witnesses he intends to call at the trial as he has been ordered to do by the trial court pursuant to Rule 28(a)(3), N.M.R. Crim. P. (see now Rule 5-502A(3) NMRA), the state objects to calling these witnesses and the trial court grants the state's motion, reserving reconsideration of the matter until the district attorney has spoken to the witnesses, but, without explanation, the defendant does not call any of these witnesses to the stand, he voluntarily abandons any further effort to have these witnesses appear and he cannot be heard on appeal to complain of error in their exclusion. State v. Bojorquez, 1975-NMCA-075, 88 N.M. 154, 538 P.2d 796, cert. denied, 88 N.M. 318, 540 P.2d 248. Nor propriety of witness' sentence for contempt. - The propriety of a witness' sentence for contempt in refusing to answer questions put by the state is not before the court of appeals for review where the issue was not raised in the trial court. State v. Sanchez, 1976-NMCA-104, 89 N.M. 673, 556 P.2d 359. Nor claim that motion not needed to offer information concerning victim's prior rape. - Whether information concerning a prior rape of a victim is "new information" within the meaning of 30-9-16 NMSA 1978 (pertaining to evidence of the victim's past sexual conduct) and, thus, does not require a separate written motion before being offered into evidence, will not be considered by an appellate court where the issue is raised for the first time on appeal. State v. Montoya, 1978-NMCA-052, 91 N.M. 752, 580 P.2d 973, cert. denied, 91 N.M. 751, 580 P.2d 972. Failure to object to admission of evidence constitutes waiver of objection, and such objection cannot be raised for the first time on appeal. McCauley v. Ray, 1968-NMSC-194, 80 N.M. 171, 453 P.2d 192. Including polygraph evidence. - Since the admissibility of polygraph evidence is now governed by the Rules of Evidence, there is no reason to suppose that parties who wish to appeal the admissibility of such evidence are excused from challenging its "erroneous" admission at trial. State v. Ortiz, 1975-NMCA-112, 88 N.M. 370, 540 P.2d 850. Also, claim of inadequate inquiry into admissibility of evidence not considered on appeal. - Where the defendant objects to the admission of certain evidence not disclosed prior to trial by the district attorney, but makes no claim of surprise to the trial court, nor seeks a continuance or asks the trial court to conduct the "adequate inquiry" which on appeal he asserts is required, the appellate court will not consider the claim that the trial court's inquiry was inadequate. State v. Smith, 1975-NMCA-139, 88 N.M. 541, 543 P.2d 834. Appointment of special master. - A juvenile who fails to invoke a ruling by the children's court on the application of the rule permitting that court to appoint a special master, and who fails to give the court below or the state the opportunity to address the criteria of the rule does not preserve the propriety of the appointment as an issue on appeal. State v. Jason F., 1998-NMSC-010, 125 N.M. 111, 957 P.2d 1145. Propriety of admission of evidence not preserved for review. - Contention that it was error to admit evidence regarding severance damages to certain tract in condemnation suit, which was not called to attention of trial court or even included in motion for new trial, was not preserved for review and could not be first raised in supreme court. City of Albuquerque v. Ackerman, 1971-NMSC-032, 82 N.M. 360, 482 P.2d 63. Error as to cross-examination cannot be raised for first time on appeal. - An objection should be made at the trial to the court's action in restricting defendant's counsel in cross-examining a witness, and if the defendant fails to invoke the court's ruling when the alleged error is committed it may not be raised for the first time on appeal. State v. Walker, 1950-NMSC-052, 54 N.M. 302, 223 P.2d 943. Where no objection to cross-examination is made in the trial court, the point will not be considered on appeal. State v. Garcia, 1967-NMSC-140, 78 N.M. 136, 429 P.2d 334. Where, in the trial court, objections to the appellant's cross-examination are sustained, and counsel for appellant fails to make a tender of what he intends to show, he cannot raise this point on appeal. State v. Hudson, 1967-NMSC-164, 78 N.M. 228, 430 P.2d 386. Where the defendant never asserts to the trial court that his cross-examination is being improperly limited, such a contention will not be considered for the first time on appeal. State v. Apodaca, 1970-NMCA-065, 81 N.M. 580, 469 P.2d 729. Where, after the state objects to further questioning regarding a witness' juvenile record and the judge sustains the objection, the defendant makes no proffer as to what his next questions would have been and what he expected to show, the defendant fails to preserve the error because the difficulty of the evidentiary problems involved in this sort of questioning makes the appellate court unwilling to guess as to what questions the defendant was prevented from asking. State v. Ortiz, 1975-NMCA-112, 88 N.M. 370, 540 P.2d 850. An asserted improper limitation of cross-examination of a juvenile raised for the first time on appeal will not be considered. State v. Smith, 1975-NMCA-139, 88 N.M. 541, 543 P.2d 834. An error in instructions is waived where the trial court's attention has not been called to the error. State v. Johnson, 1955-NMSC-070, 60 N.M. 57, 287 P.2d 247. Objections to instructions cannot be raised for the first time on appeal where the defendant neither objected to the instructions at trial nor tendered any written request. State v. Ochoa, 1956-NMSC-056, 61 N.M. 225, 297 P.2d 1053; State v. Noble, 1977-NMSC-031, 90 N.M. 360, 563 P.2d 1153. The failure to object waives any errors or defects in instructions. State v. Minor, 1968-NMSC-016, 78 N.M. 680, 437 P.2d 141; State v. Lopez, 1969-NMCA-057, 80 N.M. 599, 458 P.2d 851, cert. denied, 80 N.M. 607, 458 P.2d 859, 398 U.S. 942, 90 S. Ct. 1860, 26 L. Ed. 2d 279 (1970). Where the defendant does not object to faulty instruction, nor tender a correct written instruction, such error is not preserved for review and does not constitute fundamental error. State v. Jaramillo, 1973-NMCA-029, 85 N.M. 19, 508 P.2d 1316, cert. denied, 85 N.M. 5, 508 P.2d 1302, 414 U.S. 1000, 94 S. Ct. 353, 38 L. Ed. 2d 236 (1973). Where the defendant fails to raise issues directed to the sufficiency of the information to charge the crime and the sufficiency of the instructions defining the crime in the trial court, they will not be reviewed on appeal. State v. Mata, 1974-NMCA-067, 86 N.M. 548, 525 P.2d 908, cert. denied, 86 N.M. 528, 525 P.2d 888. The complaint that the trial court erred in failing to instruct the jury at the time a statement was admitted that it could not be considered as evidence against a nondeclarant codefendant comes too late where it was not raised before the trial court. State v. Beachum, 1967-NMSC-215, 78 N.M. 390, 432 P.2d 101, cert. denied, 392 U.S. 911, 88 S. Ct. 2068, 20 L. Ed. 2d 1369 (1968). The trial court does not err in failing to admonish the jury as to the limited scope to be given to testimony regarding prior sex offenses where the appellant does not at any time request the court to advise or admonish the jury as to the consideration it should give to such evidence. Consequently, such contention, in the absence of fundamental error, is not subject to review. State v. Minns, 1969-NMCA-035, 80 N.M. 269, 454 P.2d 355, cert. denied, 80 N.M. 234, 453 P.2d 597. Where a signed statement of one defendant is admitted in evidence at the trial without objection and another defendant does not request the trial court to instruct on the issue, the error claimed is waived. State v. Riley, 1970-NMCA-015, 82 N.M. 298, 480 P.2d 693. Where the defendant's contention that a handwritten notation violates that portion of Rule 41(e), N.M.R. Crim. P. (see now Rule 5-608E NMRA), which states: "no instruction which goes to the jury room shall contain any notation" is not presented to the trial court for its ruling, it is not before the appellate court for review. State v. Herrera, 1971-NMCA-024, 82 N.M. 432, 483 P.2d 313, cert. denied, 404 U.S. 880, 92 S. Ct. 217, 30 L. Ed. 2d 161 (1971). Where the defendant fails to request in the trial court that the instructions be amplified to further define "intent" and "knowledge," he may not raise the issue as to additional instructions in appellate court. State v. Gonzales, 1974-NMCA-080, 86 N.M. 556, 525 P.2d 916. Where the defendant does not offer an instruction on his competence to stand trial, nor does he object to the instructions given the jury, this issue is not properly preserved for appeal. State v. Lujan, 1975-NMSC-017, 87 N.M. 400, 534 P.2d 1112, cert. denied, 423 U.S. 1025, 96 S. Ct. 469, 46 L. Ed. 2d 400 (1975). The trial court's error, if any, in admitting certain evidence is not properly preserved for review where the trial court makes a preliminary ruling that the evidence is in fact irrelevant and will not be discussed further unless the state shows him some law, and recesses the trial until the following day, and there is no further mention of the evidence. Under these circumstances, it is incumbent upon the defendant to move to strike the testimony complained of or to ask for a curative instruction. State v. Sandoval, 1975-NMCA-096, 88 N.M. 267, 539 P.2d 1029. Where the defendant's contention that the trial court refused to give instructions to the effect that if the defendant was intoxicated to the point that he was incapable of malice, he could not be guilty of murder in the second degree, is not raised in the trial court, it will not be considered for the first time on appeal. State v. Gutierrez, 1975-NMCA-121, 88 N.M. 448, 541 P.2d 628. The defendant's contention that the jury could not have adequately performed their required function of determining the voluntariness of his statement because they were never informed as to what the "Miranda rights" which the attorneys, witnesses and the court referred to all through the trial is waived where the defendant does not request an instruction defining "Miranda rights." State v. Torres, 1975-NMCA-148, 88 N.M. 574, 544 P.2d 289. Where the defendant fails to ask for an instruction pursuant to Rule 303(c), N.M.R. Evid. (see now Rule 11-303C NMRA), to the effect that the existence of a presumed fact which establishes guilt, negatives a defense or is an element of the offense must, on all the evidence, be proved beyond a reasonable doubt, the error is not before the appeals court for review. State v. Matamoros, 1976-NMCA-028, 89 N.M. 125, 547 P.2d 1167. In a prosecution for criminal sexual penetration, where the trial court gives the statutory definition of "personal injury" appearing at 30-9-10 NMSA 1978, and also gives the statutory definition of "great bodily harm" at 30-1-12 NMSA 1978, the lack of an additional definition of "personal injury" is not error; if the defendant desires that "personal injury" be further defined, he should submit a requested instruction to that effect, and where he does not do so, he cannot complain of the lack of an additional definition of the term. State v. Jiminez, 1976-NMCA-096, 89 N.M. 652, 556 P.2d 60. Error in receiving guilty plea cannot be raised for first time on appeal. - Contention that the reception into evidence of the defendant's plea of guilty when arraigned before a justice of the peace was error cannot be raised for the first time in the supreme court. State v. Hudman, 1967-NMSC-201, 78 N.M. 370, 431 P.2d 748. Where the defendant argues that he is entitled to have his judgment of conviction and sentence vacated because the trial judge failed to advise him of the sentence which might be imposed upon his plea of guilty, he must fail in this contention when this question is not presented to the trial court, and therefore, cannot be raised on appeal. State v. Knerr, 1968-NMCA-022, 79 N.M. 133, 440 P.2d 808. The defendant's contention that there was a misunderstanding between the court and the defendant at the time of an alleged plea bargaining session which resulted in prejudice to the defendant cannot be raised for the first time on appeal. State v. Ranne, 1971-NMCA-151, 83 N.M. 241, 490 P.2d 683. The issue of the voluntariness of a guilty plea cannot be raised for the first time on appeal nor may issues directed to the trial court's procedure in accepting a guilty plea, such as claimed violations of Rule 21, N.M.R. Crim. P. (see now Rules 5-303 and 5-304 NMRA), be raised for the first time on appeal. State v. Wood, 1974-NMCA-113, 86 N.M. 731, 527 P.2d 494, cert. denied, 86 N.M. 730, 527 P.2d 493; State v. Brakeman, 1975-NMCA-081, 88 N.M. 153, 538 P.2d 795, cert. denied, 88 N.M. 318, 540 P.2d 248. Where the defendant claims that the trial court's procedure prior to his admitting the charge of being a habitual offender is defective in that his admission cannot legally be accepted because he has not been duly cautioned as to his rights, but does not claim that his admission is involuntary, his claim will not be heard on appeal since it has not been raised in the trial court. State v. Jordan, 1975-NMCA-102, 88 N.M. 230, 539 P.2d 620. Nor question of mandatory penalty. - Where the question of a mandatory penalty is not raised before or after judgment and sentence, not having been raised in the trial court, it cannot be raised for the first time on appeal. State v. Atencio, 1973-NMCA-110, 85 N.M. 484, 513 P.2d 1266, cert. denied, 85 N.M. 483, 513 P.2d 1265. Unattacked findings binding. - Findings which have not been attacked as being unsupported by the evidence are binding on court on appeal. Springer Corp. v. Kirkeby-Natus, 1969-NMSC-045, 80 N.M. 206, 453 P.2d 376. Since no attack was made upon findings of trial court, facts found below were facts upon which decision by appellant court would be based. Southwest Motel Brokers, Inc. v. Alamo Hotels, Inc., 1963-NMSC-091, 72 N.M. 227, 382 P.2d 707. Findings are facts upon which appeal must be determined. Valdez v. Garcia, 1968-NMCA-066, 79 N.M. 500, 445 P.2d 103, cert. denied, 79 N.M. 449, 444 P.2d 776. Where petitioners requested no findings of fact or conclusions of law upon issues, took no exceptions to the court's findings or conclusions and in no way attacked the findings as being inaccurate, incomplete or inadequate, the facts found were only facts before the court and were binding on appeal. Alfred v. Anderson, 1974-NMSC-036, 86 N.M. 227, 522 P.2d 79. Absence of pecuniary injury cannot be raised for first time on appeal. - Where defendants in wrongful death case presented no proposed findings of fact on the absence of pecuniary injury to beneficiaries, and did not discuss such issue in memorandum to the trial court on damages, matter would not be considered for the first time on appeal. Wilson v. Wylie, 1973-NMCA-154, 86 N.M. 9, 518 P.2d 1213, cert. denied, 86 N.M. 5, 518 P.2d 1209. Nor setting of trial date. - Objection to setting of trial date is necessary to preserve the question for review. Pope v. Lydick Roofing Co., 1970-NMSC-090, 81 N.M. 661, 472 P.2d 375. Nor issue of latent injury. - In workmen's compensation case, where latent injury was neither alleged nor considered by the trial court, the issue could not come before supreme court. Higgins v. Board of Dirs. of N.M. State Hosp., 1964-NMSC-034, 73 N.M. 502, 389 P.2d 616. Nor contributory negligence. - Supreme court would not consider question of contributory negligence which was neither raised in trial nor passed upon by trial court. Nally v. Texas-Arizona Motor Freight, Inc., 1962-NMSC-021, 69 N.M. 491, 368 P.2d 806. Nor employer's negligence. - Allegation of negligence by employer involved question of fact to be decided by a jury and could not be raised for the first time in the supreme court. Gibson v. Helms, 1963-NMSC-089, 72 N.M. 152, 381 P.2d 429. Nor status of deceased. - Where question of the status of deceased boys in wrongful death action brought against city for their deaths while playing in cave which collapsed was not presented to trial court until defendant moved for judgment n.o.v., the question was raised too late to be the subject of review. Williams v. Town of Silver City, 1972-NMCA-132, 84 N.M. 279, 502 P.2d 304, cert. denied, 84 N.M. 271, 502 P.2d 296. Nor validity of road tests. - Where a ruling of the trial court was not invoked on issue of similarity of road conditions at time of tests and at time of accident, it was not before the court for review. Dahl v. Turner, 1969-NMCA-075, 80 N.M. 564, 458 P.2d 816, cert. denied, 80 N.M. 608, 458 P.2d 860. Nor verification of disability complaint. - Where failure to verify occupational disease disablement, and complaint was not objected to in trial court, it could not be considered by appellate court. Holman v. Oriental Refinery, 1965-NMSC-029, 75 N.M. 52, 400 P.2d 471. Nor alleged inequity. - Defendants' contention that it would be inequitable for plaintiffs to have reacquired motel property for nominal consideration and still hold them to promissory note was not subject to review for first time on appeal. McNabb v. Warren, 1971-NMSC-109, 83 N.M. 247, 490 P.2d 964. Nor right to constructive trust. - In breach of contract suit, where claim of right to a constructive trust was first raised in supreme court on appeal, the court would not consider it, even if there were merit to it. Romero v. Sanchez, 1974-NMSC-013, 86 N.M. 55, 519 P.2d 291. Nor bars to rescission of contract. - A claim that the plaintiff was barred from obtaining rescission because he did not read the contract before signing it was not an issue on appeal where it was not raised in the trial court. C.B. & T. Co. v. Hefner, 1982-NMCA-131, 98 N.M. 594, 651 P.2d 1029. Nor bar to rescission of policy. - In action by insurer to rescind medical expense policy allegation that such insurance could not be rescinded after loss had occurred and claim made could not be raised on appeal, not having been presented to trial court. Prudential Ins. Co. of Am. v. Anaya, 1967-NMSC-132, 78 N.M. 101, 428 P.2d 640. Nor claim of sovereign immunity. - Where contention that plaintiff's claim for damages involved tort claims for which state could not be sued was not stated in the application for an interlocutory appeal, and was raised for the first time in the briefs, it would not be considered by the court of appeals. Feldman v. Regents of Univ. of N.M., 1975-NMCA-111, 88 N.M. 392, 540 P.2d 872. Nor affirmative defenses. - Where no affirmative defense alleging duress and lack of consideration was made in the pleadings nor was a trial court ruling invoked thereon, question was not preserved for review. Soens v. Riggle, 1958-NMSC-063, 64 N.M. 121, 325 P.2d 709. Although failure to plead matter which constitutes an affirmative defense does not preclude a party from taking advantage of the opposing party's proof if such proof establishes the defense, appellant cannot take advantage of appellee's proof for the first time on appeal. Fredenburgh v. Allied Van Lines, 1968-NMSC-174, 79 N.M. 593, 446 P.2d 868. Where plaintiff did not plead affirmative defenses of waiver or estoppel as required by former Rule 8(c), N.M.R. Civ. P. (see now Rule 1-008C NMRA), and the case was not tried on such issues below, neither waiver nor estoppel was issue on appeal. Western Farm Bureau Mut. Ins. Co. v. Barela, 1968-NMSC-082, 79 N.M. 149, 441 P.2d 47. Nor mitigation issue. - Where one neither pleads mitigation of damages as an affirmative defense nor introduces any evidence to support the defense but instead argues the matter before the court and then presents his case, the argument alone will not create an issue on appeal. The burden is on the defendant to seek a ruling, and since no ruling or decision was obtained from the trial court, the defendant had failed to preserve for review the question of mitigation of damages. Acme Cigarette Servs., Inc. v. Gallegos, 1978-NMCA-036, 91 N.M. 577, 577 P.2d 885. Nor defenses to summary judgment. - In determining whether it was error for trial court to grant summary judgment, appellate court is limited to matters presented in pleadings, affidavits and pre-trial depositions, and defenses could not be invoked for the first time on appeal. Western Farm Bureau Mut. Ins. Co. v. Barela, 1968-NMSC-082, 79 N.M. 149, 441 P.2d 47. Nor waiver of defenses. - Question of insurer's waiver of defenses raised for the first time on appeal would not be considered. Wiseman v. Arrow Freightways, Inc., 1976-NMCA-067, 89 N.M. 392, 552 P.2d 1240, cert. denied, 90 N.M. 9, 558 P.2d 621. Nor existence of reduction of note to judgment. - Where claim that judgment was based on a promissory note which had been reduced to and merged in a different judgment by the Navajo tribal court was not raised or ruled upon by the trial court it could not be considered on appeal. Batchelor v. Charley, 1965-NMSC-001, 74 N.M. 717, 398 P.2d 49. Nor as to error in allowance of interest. - Alleged error in judgment which provided for interest from date thereof, although neither note nor findings and conclusions of court mentioned interest, was not jurisdictional, and could not be raised for first time on appeal. Brock v. Adams, 1968-NMSC-052, 79 N.M. 17, 439 P.2d 234. Nor claim as to inadequacy of damages. - As plaintiffs did not invoke any ruling of the trial court on the asserted inadequacy of damages, they may not raise issue for the first time on appeal. Schrib v. Seidenberg, 1969-NMCA-078, 80 N.M. 573, 458 P.2d 825. Nor challenge to stipulated verdict form. - Where trial judge gave parties opportunity to respond to the stipulated verdict form, and plaintiff failed to do so, plaintiff could not then challenge the verdict form on appeal, since the issue had not been properly preserved. Diversey Corp. v. Chem-Source Corp., 1998-NMCA-112, 125 N.M. 748, 965 P.2d 332. Nor claim of excessive verdict. - Contentions that verdict against appellant was excessive, was not supported by substantial evidence or was based on passion, undue influence or mistaken measure of damages, which contentions were not raised in the trial court, were not preserved for review and could not be raised for the first time on appeal. Lujan v. Gonzales, 1972-NMCA-098, 84 N.M. 229, 501 P.2d 673, cert. denied, 84 N.M. 219, 501 P.2d 663. Where allegation that verdict was excessive and resulted from passion, prejudice and sympathy was not raised below, it would not be considered on appeal. McCauley v. Ray, 1968-NMSC-194, 80 N.M. 171, 453 P.2d 192. Nor validity of release. - Where trial court did not rule on the validity or the effect of the release executed after entry of the judgment in workmen's compensation case, court of appeals would not consider the release for the first time on appeal. Burton v. Jennings Bros., 1975-NMCA-068, 88 N.M. 95, 537 P.2d 703, cert. denied, 88 N.M. 318, 540 P.2d 248. Nor age of licensee. - In action by lessors seeking reassignment of liquor license, question of minority of one of the lessors, not presented to trial court, was not reviewable on appeal. Shelley v. Norris, 1963-NMSC-193, 73 N.M. 148, 386 P.2d 243. Nor type of certificate. - Issue of class or type of wrecker owner's certificate would not be considered on appeal, where it was not directly and specifically raised in the trial court. Trujillo v. Romero, 1971-NMSC-020, 82 N.M. 301, 481 P.2d 89. Nor validity of signature. - In an action seeking a declaratory judgment and an injunction to prevent city from fluoridating water supply, allegation that facsimile signature of city clerk was fatal to city's cause, never raised in trial court, could not be raised before the supreme court. Turner v. Barnhart, 1972-NMSC-036, 83 N.M. 759, 497 P.2d 970. Nor necessity of stockholders consent to sale of assets. - Where issue of consent of stockholders to sale of corporate assets was never raised, and no ruling invoked or evidence presented or requested thereon, although in argument between counsel on a motion to strike certain testimony, appellant's attorney stated that if the entire assets of corporation were sold, the consent of stockholders would have to be obtained, issue was not preserved for review. Southwest Motel Brokers, Inc. v. Alamo Hotels, Inc., 1963-NMSC-091, 72 N.M. 227, 382 P.2d 707. Nor sufficiency of evidence to support agency decision. - Whether agency decision was supported by substantial evidence could not be first raised on appeal. Musgrove v. Department of Health & Social Servs., 1972-NMCA-091, 84 N.M. 89, 499 P.2d 1011, cert. denied, 84 N.M. 77, 499 P.2d 999. Nor propriety in guardianship proceeding of reliance on agency investigation. - In guardianship proceeding, propriety of relying on an investigation by the department of public welfare (now replaced by human services department) could not be questioned for the first time on appeal. In re Caffo, 1961-NMSC-161, 69 N.M. 320, 366 P.2d 848. Nor right to personal judgment. - Where question of appellee's right to personal judgment against appellant, as distinguished from right to lien upon appellant's property, was never raised in trial court, appellant was precluded from raising question on appeal. English v. Branum, 1926-NMSC-008, 31 N.M. 334, 245 P. 252. Nor sufficiency of writ. - Where appellant did not raise the question as to whether the writ must advise the garnishee of consequences of its failure to answer before trial court, and no claim was made that question was jurisdictional, issue was not properly before supreme court. Conejos County Lumber Co. v. Citizens Sav. & Loan Ass'n, 1969-NMSC-122, 80 N.M. 612, 459 P.2d 138. Nor failure to enter interlocutory order. - Appellants could not raise contention that court should have entered interlocutory order for the first time on appeal. Van Orman v. Nelson, 1967-NMSC-069, 78 N.M. 11, 427 P.2d 896. Nor propriety of de novo review. - Where complaint that trial court was proceeding improperly in undertaking to try certain zoning issues de novo on review of decision of city commission was not made below, trial court's findings could not be attacked on appeal, and were facts upon which court would decide case. Krutzner Corp. v. City of Las Vegas, 1970-NMSC-052, 81 N.M. 359, 467 P.2d 25. Nor improper closing argument. - Where defendant did not invoke ruling of trial court on his objection to inclusion in plaintiff's closing argument of comments of doctor which were allegedly not in evidence, he could not complain thereof. Hale v. Furr's Inc., 1973-NMCA-066, 85 N.M. 246, 511 P.2d 572, cert. denied, 85 N.M. 229, 511 P.2d 555. Nor order of dismissal. - Where city intended to claim error on the part of the trial court in entering the order of dismissal, it was the city's duty to clearly assert this claim and to present argument and authority in support thereof, and where the city failed to do so, neither the order of dismissal nor the cause in which the order was entered could be before the supreme court on appeal. Sangre De Cristo Dev. Corp. v. City of Santa Fe, 1972-NMSC-076, 84 N.M. 343, 503 P.2d 323, cert. denied, 411 U.S. 938, 93 S. Ct. 1900, 36 L. Ed. 2d 400 (1973). Nor refusal of motion not in record. - Claim that the trial court erred in refusing to grant the defendants' motion for new trial or in alternative for remittitur was not subject to review, since no refusal appeared of record. Selgado v. Commercial Whse. Co., 1975 -NMCA-144, 88 N.M. 579, 544 P.2d 719. C. RECORD ON APPEAL. Duty to insure that record is made. - Litigant seeking review of a ruling of the trial court has the duty to see that a record is made of the proceedings he desires to have reviewed. Ikelman v. Ikelman, 1971-NMSC-007, 82 N.M. 262, 479 P.2d 766. Litigant desiring review of a ruling of the trial court has a duty to see that a record is made of the proceedings to be reviewed; otherwise the correctness of such ruling cannot be questioned. Barnett v. Cal M, Inc., 1968-NMSC-159, 79 N.M. 553, 445 P.2d 974. For appellate review to be meaningful there must be record of sufficient completeness to permit proper consideration of an appellant's claims; this does not require a complete verbatim transcript, however, and alternative methods may be employed. State v. Herrera, 1972-NMCA-068, 84 N.M. 46, 499 P.2d 364, cert. denied, 84 N.M. 37, 499 P.2d 355, 409 U.S. 1110, 93 S. Ct. 918, 34 L. Ed. 2d 692 (1973). Appeals are limited to the record presented for review. State v. Buchanan, 1967-NMSC-267, 78 N.M. 588, 435 P.2d 207; State v. Ford, 1970-NMCA-061, 81 N.M. 556, 469 P.2d 535; State v. Andrada, 1971-NMCA-033, 82 N.M. 543, 484 P.2d 263, cert. denied, 82 N.M. 534, 484 P.2d 754; State v. Herrera, 1972-NMCA-068, 84 N.M. 46, 499 P.2d 364, cert. denied, 84 N.M. 37, 499 P.2d 355, 409 U.S. 1110, 93 S. Ct. 918, 34 L. Ed. 2d 692 (1973); State v. Snow, 1972-NMCA-138, 84 N.M. 399, 503 P.2d 1177, cert. denied, 84 N.M. 390, 503 P.2d 1168. Appellate court will not assume facts that do not appear in the record. State v. Sandoval, 1966-NMSC-143, 76 N.M. 570, 417 P.2d 56. An appellate court will consider only the record and will not assume facts unsupported by the record. State v. Thayer, 1969-NMCA-086, 80 N.M. 579, 458 P.2d 831. Where the record is ambiguous concerning a statement allegedly made to the jury by the assistant district attorney, and does not show that either the court or counsel agreed such a statement was made, the alleged remark is not supported by the record. The appellate court will not assume facts not so supported. State v. Gutierrez, 1967-NMCA-024, 78 N.M. 529, 433 P.2d 508. Court of appeals cannot speculate as to matters outside the record but is limited to a consideration of what appears in the record. State v. Henderson, 1970-NMCA-022, 81 N.M. 270, 466 P.2d 116. Facts not of record not reviewed. - The facts which are necessary to present a question for review by the appellate court are those facts established by the record and any fact not before the court on appeal will not be reviewed. State v. Paul, 1971-NMCA-040, 82 N.M. 619, 485 P.2d 375, cert. denied, 82 N.M. 601, 485 P.2d 357. Even facts which can be judicially noticed. - Where a municipal ordinance is not included on the transcript, and the appellant does not suggest that the court should judicially notice the ordinance, probable cause for an arrest for a violation of the ordinance will not be considered by the supreme court, even where the district court has taken judicial notice of the ordinance. City of Albuquerque v. Leatherman, 1965-NMSC-009, 74 N.M. 780, 399 P.2d 108. Findings which are not attacked are facts before the appellate court. State v. Hodnett, 1968-NMCA-104, 79 N.M. 761, 449 P.2d 669; State v. Jacoby, 1971-NMCA-025, 82 N.M. 447, 483 P.2d 502; State v. Woods, 1973-NMCA-114, 85 N.M. 452, 513 P.2d 189; State v. Carr, 1973-NMCA-118, 85 N.M. 463, 513 P.2d 397. A finding which is not attacked is a fact before the appellate court, and where no attack is made on a finding it will not be reviewed. McCroskey v. State, 1970-NMCA-109, 82 N.M. 49, 475 P.2d 49. Record on appeal is presumed accurate and is conclusive on the reviewing court. State v. Lopez, 1969-NMCA-057, 80 N.M. 599, 458 P.2d 851, cert. denied, 80 N.M. 607, 458 P.2d 859, 398 U.S. 942, 90 S. Ct. 1860, 26 L. Ed. 2d 279 (1970). Docketing statement. - The docketing statement no longer governs the issues that may be raised on a nonsummary calendar. State v. Salgado, 1991-NMCA-044, 112 N.M. 537, 817 P.2d 730. On general calendar, the appellate court can consider any evidence in the record on appeal even if not noted in the docketing statement, and does not consider factual assertions in the docketing statement that are not supported by the record on appeal. State v. Salgado, 1991-NMCA-044, 112 N.M. 537, 817 P.2d 730. Insofar as the docketing statement acts as a substitute for the record in presenting facts to the appellate court in proceedings on the summary calendar, that purpose of the docketing statement is superseded by the record on appeal once the case is on the general calendar. State v. Salgado, 1991-NMCA-044, 112 N.M. 537, 817 P.2d 730. Defendant responsible for making proper record despite court's responsibility to limit prejudicial cross-examination. - The primary responsibility is on the trial court to determine when cross-examination should be limited because the legitimate probative value on the credibility of the accused is outweighed by its illegitimate tendency, effect or purpose to prejudice the defendant, but the defendant is not relieved of his responsibility for making a proper record of claimed error he wishes reviewed on appeal. State v. Baca, 1969-NMCA-070, 80 N.M. 488, 458 P.2d 92. Appellant must point out facts asserted, as appellate court will not search record. - The court will not search the record in an effort to try to determine what appellant has in mind. The duty is on the appellant to point out specifically the evidence which he claims is erroneously admitted and the court's rulings thereon. The appellate court will not search the record to find error upon which the trial court may be reversed. State v. Weber, 1966-NMSC-164, 76 N.M. 636, 417 P.2d 444. A claim that counsel was ineffective during the course of the trial because he registered only limited objections despite numerous leading questions asked by the state will be denied where the appellant fails to make reference in the transcript to a single leading question. An assertion of fact must be accompanied by reference to the transcript showing a finding or proof of it. Otherwise, the court may disregard the fact, as the court will not search the record to find error. State v. Gutierrez, 1968-NMCA-090, 79 N.M. 732, 449 P.2d 334, cert. denied, 80 N.M. 33, 450 P.2d 633. Court cannot review possible errors that are not preserved in the record. State v. Elliott, 1977-NMSC-002, 89 N.M. 756, 557 P.2d 1105. The appellant's supplement to brief in chief by which he seeks to raise points which are outside the record cannot be considered by an appellate court because these points are outside the record. State v. Lujan, 1968-NMSC-088, 79 N.M. 200, 441 P.2d 497. Where there is nothing in the record on which to base an allegation, there is nothing for an appellate court to consider. State v. Colvin, 1971-NMCA-006, 82 N.M. 287, 480 P.2d 401. Contentions not presented before trial court, as shown in record, not reviewable. - Where the record does not show that the defendant's present contention was presented to the trial court, it will not be considered on appeal. State v. Silver, 1971-NMCA-112, 83 N.M. 1, 487 P.2d 910. And this includes assertion of denial of right to counsel. - Where the appellant urges that the imposition of a life sentence was improper because he did not have the assistance of counsel in one of the earlier felony convictions included in the habitual criminal charge, but this objection was not presented before the trial court and the record is wholly silent on the point, the supreme court will not speculate on whether there was a denial of the constitutional right to assistance of counsel, or a waiver of the right. State v. Sandoval, 1966-NMSC-143, 76 N.M. 570, 417 P.2d 56. Where the record is barren of any mention of a motion, and the matter in question was not called to the attention of the trial court nor ruled upon, then this matter may not be raised for the first time on appeal and is therefore not subject to review. State v. Cebada, 1972-NMCA-140, 84 N.M. 306, 502 P.2d 409. And objections to instructions. - Where the appellant moves at the close of the state's case, as well as at the close of all testimony, and by a motion for a new trial after the verdict, to dismiss the charges because of a failure of proof to support a conviction of murder either in the first or second degree or of manslaughter, but where no objection to the jury being instructed on manslaughter along with the two degrees of murder is stated in the record, this constitutes a waiver of errors or defects in the instructions. State v. Lopez, 1968-NMSC-092, 79 N.M. 282, 442 P.2d 594. And argument as to improper remarks by prosecutor. - While remarks of the prosecutor concerning the defendant's failure to testify are clearly impermissible and in the absence of waiver would constitute reversible error, where the defendant objects to the prosecutor's remarks, but where, out of the hearing of the jury, the trial court indicates that the prosecutor's remarks have been invited by the defendant's argument, and for unexplained reasons the record fails to include the defendant's argument to the jury, the court of appeals cannot presume error; consequently, no reviewable question is presented. State v. Gunthorpe, 1970-NMCA-027, 81 N.M. 515, 469 P.2d 160, cert. denied, 81 N.M. 588, 470 P.2d 309, 401 U.S. 941, 91 S. Ct. 943, 28 L. Ed. 2d 221 (1971). And claim of erroneous exclusion of evidence. - The record does not support a claim that the trial court acted arbitrarily and without adequate inquiry into the circumstances surrounding a violation of the notice of alibi rule by excluding the evidence in question, where it shows the parties were given an opportunity to present their contentions to the trial court, but such contentions were never raised. State v. Smith, 1975-NMCA-139, 88 N.M. 541, 543 P.2d 834. Any trial ruling presumed correct. - Every presumption favors the correctness of any ruling or decision of the trial court, and a party alleging error must be able to point clearly to it. State v. Weber, 1966-NMSC-164, 76 N.M. 636, 417 P.2d 444. Abuse of discretion cannot be presumed but must be affirmatively established, because where the record is silent as to the reasons for a ruling, regularity and correctness are presumed. State v. Serrano, 1966-NMSC-166, 76 N.M. 655, 417 P.2d 795. And claims require support of record before reversal authorized. - There is no error in the trial court's denial of the defendant's motion to dismiss for failure to authorize state payment for a polygraph examination where the record does not support the defendant's claim of indigency at the time of the motion, the record does not show that any claim of critical evidence was ever raised prior to the appeal, there is nothing in the record supporting a claim of critical evidence at the time the motion was denied, the defendant calls alibi witnesses so that as regards an alibi defense the absence of a polygraph examination is not critical, and the defendant's motion seeking the polygraph examination makes no allegations of any kind concerning the requirements for admissibility. State v. Carrillo, 1975-NMCA-103, 88 N.M. 236, 539 P.2d 626. Trial court's erroneous mannerisms cannot be shown by typewritten record. - Where the transcript is typewritten, it does not show any alleged erroneous mannerisms of the trial court, and the appellate court cannot determine either whether the trial court indulged in any such asserted mannerisms or whether counsel has made improper charges against the trial court. State v. Herrera, 1977-NMCA-028, 90 N.M. 306, 563 P.2d 100, cert. denied, 90 N.M. 636, 567 P.2d 485. III. EXCEPTIONS TO PRESERVATION REQUIREMENT. A. IN GENERAL. Issue not raised in trial court considered only if it falls within statutory exception. - Issues not raised in the trial court nor the docketing statement may not be raised for the first time in the brief in chief and, if so raised, may only be considered if the issue falls within one of the statutory exceptions. State v. Aranda, 1980-NMCA-130, 94 N.M. 784, 617 P.2d 173. Only jurisdictional questions could be raised for first time on appeal under Rule 20(1) of former Supreme Court Rules. Western Farm Bureau Mut. Ins. Co. v. Barela, 1968-NMSC-082, 79 N.M. 149, 441 P.2d 47; Danz v. Kennon, 1957-NMSC-090, 63 N.M. 274, 317 P.2d 321. Constitutional issues. - Court of Appeals will not address constitutional issues if the issues were not raised in the district court, unless the issues involve matters of jurisdiction, fundamental error, or fundamental rights. State v. Druktenis, 2004-NMCA-032, 135 N.M. 223, 86 P.3d 1050. Question of preemption by federal law. - Although the issue is raised for the first time in the supreme court, whether or not state law is preempted by federal legislation in a particular area is an issue directed toward subject matter jurisdiction and therefore may be raised at any time in the course of the proceedings. Ashlock v. Sunwest Bank, 1988-NMSC-026, 107 N.M. 100, 753 P.2d 346, overruled on other grounds, Gonzales v. Surgidev Corp., 1995-NMSC-036, 120 N.M. 133, 899 P.2d 576. Exceptions to former rule. - Notwithstanding former rule, the supreme court in the interests of justice, did not limit to jurisdictional questions those that could be first raised therein; questions which could be raised for the first time on appeal included jurisdictional issues, questions of a general public nature affecting the state at large, and matters affecting fundamental rights of a party. Candelaria v. Gutierrez, 1924-NMSC-070, 30 N.M. 195, 230 P. 436; Mitchell v. Allison, 1949-NMSC-070, 54 N.M. 56, 213 P.2d 231 (including inherently and fatally defective judgments among questions which may be first raised on appeal). Three exceptions to general rule. - Although normally questions not objected to at a hearing may not be raised on review, there were three exceptions to former Rule 308, N.M.R. App. P. (Crim.) (see now this rule), being: that jurisdictional questions could be raised for the first time on appeal, that questions of a general public nature affecting the interest of the state at large could be determined by the court without having been raised in the trial court, and that the court could determine propositions not raised in the trial court where it was necessary to do so in order to protect the fundamental rights of the party. State v. Pacheco, 1973-NMCA-155, 85 N.M. 778, 517 P.2d 1304. Although there is a general proscription against an appellate court considering matters not yet raised in the trial court, such matters may be considered if the question involves: (a) general public interest; (b) fundamental rights of a party; or (c) facts or circumstances occurring or arising, or first becoming known after the trial court lost jurisdiction. St. Vincent Hosp. v. Salazar, 1980-NMSC-124, 95 N.M. 147, 619 P.2d 823. Issues of public interest and fundamental rights. - The appellate court cannot accept jurisdiction merely because issues of general public interest and fundamental personal due process rights are at stake. The timely filing of a notice of appeal under Rule 12-201A is jurisdictional. State ex rel. Human Servs. Dep't v. Jasso, 1987-NMCA-124, 107 N.M. 75, 752 P.2d 790. Preservation rule limited in the context of administrative hearings. - Where appellant sought review of the Bernalillo County Valuation Protests Board's (Protests Board) valuation of appellant's commercial property, and where appellant failed to raise a substantial evidence argument before the Protests Board, the issue may be considered on appellate review, because the rules do not require formal preservation of error before appeal may be taken in cases in which the determination of a local governing body acting in a quasi-judicial capacity is challenged based upon a substantial evidence argument, and a property tax valuation protest board is a quasi-judicial body. 2727 San Pedro LLC v. Bernalillo Cty. Assessor, 2017-NMCA-008. Failure to object not excused on ground that objection would have magnified error. - The defendant cannot excuse his failure to object to a claimed error on the ground that to have done so would have magnified the error in the minds of the jury. State v. Polsky, 1971-NMCA-011, 82 N.M. 393, 482 P.2d 257, cert. denied, 82 N.M. 377, 482 P.2d 241, 404 U.S. 1015, 92 S. Ct. 688, 30 L. Ed. 662 (1972). And closeness of case does not excuse lack of objection. - The assertion that the case is "close" and that the supreme court should review errors in the record notwithstanding the failure of counsel to save the question for review is without merit. State v. Gonzales, 1967-NMSC-054, 77 N.M. 583, 425 P.2d 810. Sufficiency of complaint. - Although defendant city never raised the question of the sufficiency of the complaint until filing of answer brief, such objection may always be raised. Valdez v. City of Las Vegas, 1961-NMSC-052, 68 N.M. 304, 361 P.2d 613. B. JURISDICTIONAL QUESTIONS. 1. GENERALLY. Jurisdictional questions may be raised at any time. Johnson v. C & H Constr. Co., 1967 -NMCA-013, 78 N.M. 423, 432 P.2d 267, overruled on other grounds, Kelly Inn No. 102, Inc. v. Kapnison, 1992-NMSC-005, 113 N.M. 231, 824 P.2d 1033. Attack on subject-matter jurisdiction may be made at any time in the proceedings; it may be made for the first time upon appeal, or it may be made by a collateral attack in the same or other proceedings long after the judgment has been entered. Chavez v. County of Valencia, 1974-NMSC-035, 86 N.M. 205, 521 P.2d 1154. Failure to pass upon question of venue or jurisdiction in prior appeal is not in any sense controlling in later appeal. Allen v. McClellan, 1967-NMSC-114, 77 N.M. 801, 427 P.2d 677, overruled in New Mexico Livestock Bd. v. Dose, 1980-NMSC-022, 94 N.M. 68, 607 P.2d 606. Court will notice, without exception or presentation, jurisdictional matters rendering a case inherently and fatally defective. Baca v. Perea, 1919-NMSC-062, 25 N.M. 442, 184 P. 482. Jurisdiction of the trial court may be raised on appeal, since that court could not act if it did not properly have jurisdiction. Perea v. Baca, 1980-NMSC-079, 94 N.M. 624, 614 P.2d 541. Jurisdictional issues may be raised sua sponte. - Where a jurisdictional issue is not raised by party to appeal, appellate court may nevertheless raise the issues sua sponte. Masterman v. State Taxation & Revenue Dep't, 1998-NMCA-126, 125 N.M. 705, 964 P.2d 869. Jurisdictional error may be raised for the first time on appeal. State v. Buhr, 1971-NMCA-017, 82 N.M. 371, 482 P.2d 74; State v. Doe, 1980-NMCA-148, 95 N.M. 90, 619 P.2d 194. Jurisdictional or fundamental errors may be first raised on appeal. - Errors not raised in the trial court cannot be first raised on appeal unless the errors claimed are either jurisdictional or fundamental. State v. James, 1966-NMSC-110, 76 N.M. 376, 415 P.2d 350; State v. Jaramillo, 1973-NMCA-029, 85 N.M. 19, 508 P.2d 1316, cert. denied, 85 N.M. 5, 508 P.2d 1302, 414 U.S. 1000, 94 S. Ct. 353, 38 L. Ed. 2d 236 (1973); State v. Stevens, 1981-NMCA-020, 96 N.M. 753, 635 P.2d 308, rev'd on other grounds, 1981-NMSC-094, 96 N.M. 627, 633 P.2d 1225, cert. denied, 458 U.S. 1109, 102 S. Ct. 3489, 73 L. Ed. 2d 1371 (1982). Errors neither jurisdictional nor fundamental cannot be raised for the first time on appeal. State v. Baca, 1969-NMCA-070, 80 N.M. 488, 458 P.2d 92; State v. Rodriquez, 1970-NMSC-073, 81 N.M. 503, 469 P.2d 148; State v. Frazier, 1973-NMCA-127, 85 N.M. 545, 514 P.2d 302. Jurisdiction can be questioned at any time. - Jurisdiction refers to the judicial power to hear and determine a criminal prosecution, whereas venue relates to and defines the particular county or territorial area within a state or district in which the prosecution is to be brought or tried. Venue does not affect the power of the court and can be waived, but a jurisdictional defect can never be waived because it goes to the very power of the court to entertain the action, and such a defect can be raised at any stage of the proceedings, even sua sponte by the appellate court. State v. Ramirez, 1976-NMCA-101, 89 N.M. 635, 556 P.2d 43, overruled on other grounds, City of Albuquerque v. Haywood, 1998-NMCA-029, 124 N.M. 661, 954 P.2d 93, cert. denied, 124 N.M. 589, 953 P.2d 1087. Lack of jurisdiction at any stage of proceedings is controlling consideration which must be resolved before going further, and an appellate court may raise the question of jurisdiction on its own motion. In re Kinscherff, 1976-NMCA-097, 89 N.M. 669, 556 P.2d 355, cert. denied, 90 N.M. 8, 558 P.2d 620. To be raised on court's own motion. - Even if jurisdictional question was not raised by either party, an appellate court will and should, on its own motion, raise lack of jurisdiction where an order lacks finality due to an absence of the necessary determination and order of the trial court. Pacheco v. Pacheco, 1971-NMSC-049, 82 N.M. 486, 484 P.2d 328; Aetna Cas. & Sur. Co. v. Miles, 1969-NMSC-056, 80 N.M. 237, 453 P.2d 757. Jurisdictional question of whether the appeal was timely filed must be determined whether it is called to court's attention or not. Marquez v. Wylie, 1967-NMSC-245, 78 N.M. 544, 434 P.2d 69. Appellate court may raise the question of jurisdiction on its own motion. State v. McNeece, 1971-NMCA-01282 N.M. 345, 481 P.2d 707. Burden of demonstrating want of jurisdiction rests upon the party asserting such want. State v. Reyes, 1967-NMCA-023, 78 N.M. 527, 433 P.2d 506. 2. QUESTIONS DEEMED JURISDICTIONAL. Jurisdiction of oil conservation commission. - Question of oil conservation commission's jurisdiction to make order establishing separate production units would be determined by supreme court although raised therein for the first time. Sims v. Mechem, 1963-NMSC-103, 72 N.M. 186, 382 P.2d 183. Constitutionality of statute creating offense deemed jurisdictional. - Although the constitutionality of the statute creating the offense is raised for the first time on appeal, the question is jurisdictional and will be considered on review. State v. Austin, 1969-NMCA-095, 80 N.M. 748, 461 P.2d 230. When the defendant asserts that a statute is unconstitutional, he questions the district court's power or authority to decide the particular matter presented; in such a case the question is jurisdictional and may be raised for the first time on appeal. State v. Aranda, 1980-NMCA-130, 94 N.M. 784, 617 P.2d 173. The contention that the child abuse statute is unconstitutional, while not listed in the docketing statement, is one which may be raised for the first time in the appellate brief. State v. Fulton, 1983-NMCA-010, 99 N.M. 348, 657 P.2d 1197. As is claim regarding constitutional right to jury. - The defendant has a constitutional right to a jury of 12. Because a fundamental right is involved, the issue of an alternative in the jury room is reviewable. State v. Coulter, 1982-NMCA-106, 98 N.M. 768, 652 P.2d 1219. And failure to instruct on essential element of crime. - The refusal to give an instruction containing an essential element of the crime charged, in the absence of any other instructions covering that element, is jurisdictional, and jurisdictional questions can be raised for the first time on appeal. State v. Walsh, 1969-NMCA-123, 81 N.M. 65, 463 P.2d 41; State v. Jennings, 1984-NMCA-051, 102 N.M. 89, 691 P.2d 882. Where counsel makes no objections to the instructions of the trial court, error, if any, must be jurisdictional to be reviewable, and the failure to instruct on an essential element of the crime is jurisdictional. State v. Bachicha, 1972-NMCA-141, 84 N.M. 397, 503 P.2d 1175; State v. Fuentes, 1973-NMCA-069, 85 N.M. 274, 511 P.2d 760, cert. denied, 85 N.M. 265, 511 P.2d 751; State v. Montoya, 1974-NMCA-025, 86 N.M. 155, 520 P.2d 1100; State v. Foster, 1974-NMCA-150, 87 N.M. 155, 530 P.2d 949. Except where the legislature clearly indicates a desire to eliminate the requirement of criminal intent, criminal statutes will be construed in the light of the common law and criminal intent will be required, and the failure to instruct on this required element will be considered jurisdictional. State v. Fuentes, 1973-NMCA-069, 85 N.M. 274, 511 P.2d 760, cert. denied, 85 N.M. 265, 511 P.2d 751. And failure to prove geographic location of crime. - The contention that the state has failed to prove jurisdiction over defendant in that the state has produced no evidence that at the time of the alleged offense the defendant was even in the state of New Mexico can sua sponte be raised for consideration because it is jurisdictional. State v. Tooke, 1970-NMCA-068, 81 N.M. 618, 471 P.2d 188, overruled on other grounds, State v. Ruffins, 1990-NMSC-035, 109 N.M. 668, 789 P.2d 616; State v. Losolla, 1972-NMCA-085, 84 N.M. 151, 500 P.2d 436. Conviction and sentence of defendant under inapplicable statute is a question of jurisdiction, since one aspect of jurisdiction is the power or authority to decide the particular matter presented. State v. McNeece, 1971-NMCA-012, 82 N.M. 345, 481 P.2d 707. Imposition of illegal sentence is jurisdictional. - The state may challenge the legality of a sentence for the first time on appeal, because the trial court has no jurisdiction to impose an illegal sentence. State v. Bachicha, 1991-NMCA-014, 111 N.M. 601, 808 P.2d 51. Both the state and defendants are allowed to challenge illegal sentences for the first time on appeal. State v. Shay, 2004-NMCA-077, 136 N.M. 8, 94 P.3d 8, cert. granted, 2005-NMCERT-002. As is existence of statute creating offense. State v. Cutnose, 1975-NMCA-021, 87 N.M. 300, 532 P.2d 889, overruled on other grounds, State v. McCormack, 1984-NMSC-006, 100 N.M. 657, 674 P.2d 1117. Question of failure of proof of offense charged is jurisdictional and may be raised for the first time on appeal. State v. Linam, 1977-NMCA-082, 90 N.M. 729, 568 P.2d 255, cert. denied, 91 N.M. 3, 569 P.2d 413, overruled on other grounds, State v. Ruffins, 1990-NMSC-035, 109 N.M. 668, 789 P.2d 616; State v. Stein, 1999-NMCA-065, 127 N.M. 362, 981 P.2d 295. 3. QUESTIONS DEEMED NOT JURISDICTIONAL. Alleged lack of probable cause for arrest is not jurisdictional question and cannot be raised for first time on appeal from a denial of post-conviction relief. State v. Lattin, 1967-NMSC-115, 78 N.M. 49, 428 P.2d 23. Neither is refusing to postpone proceedings to accord defendant opportunity to produce witness. - The contention on appeal that the trial court erred in refusing to postpone the proceedings so as to accord the defendant an opportunity to produce a material witness is without merit where the defendant at no time requested a postponement during the trial, and such a question is not jurisdictional and therefore cannot be raised for the first time on appeal. State v. Milton, 1969-NMCA-099, 80 N.M. 727, 460 P.2d 257. Alleged lack of opportunity for cross-examination is not jurisdictional and does not involve fundamental error, and it may not be raised for the first time on appeal. State v. Baca, 1970-NMCA-075, 81 N.M. 686, 472 P.2d 651, cert. denied, 81 N.M. 721, 472 P.2d 984; State v. Smith, 1985-NMCA-007, 102 N.M. 350, 695 P.2d 834, overruled on other grounds, Gillespie v. State, 1988-NMSC-068, 107 N.M. 455, 760 P.2d 147. Neither is variance between indictment and proof. - A faulty allegation of fact in an indictment on the name and address of the party and place victimized is not jurisdictional as the error can be cured by the verdict of the jury. State v. Jaramillo, 1973-NMCA-029, 85 N.M. 19, 508 P.2d 1316, cert. denied, 85 N.M. 5, 508 P.2d 1302, 414 U.S. 1000, 94 S. Ct. 353, 38 L. Ed. 2d 236 (1973). Nor inconsistent instructions. - A claim that the instruction defining the crime involved was inconsistent with the specific charge does not amount to a claim of jurisdictional error. State v. Urban, 1974-NMCA-046, 86 N.M. 351, 524 P.2d 523. Failure to instruct on definition or amplification of element of crime is not jurisdictional error. State v. Jennings, 1984-NMCA-051, 102 N.M. 89, 691 P.2d 882. Challenge to legal correctness of manslaughter instruction not claim of jurisdictional error. - The defendant's challenge to the legal correctness of the uniform jury instruction on voluntary manslaughter (former UJI Crim. 2.20 (now see Rule 14-220 NMRA)) is not a claim of jurisdictional error and is not before the court on review when it is raised for the first time on appeal. State v. Scott, 1977-NMCA-024, 90 N.M. 256, 561 P.2d 1349, cert. denied, 90 N.M. 637, 567 P.2d 486, overruled on other grounds, State v. Reynolds, 1982-NMSC-091, 98 N.M. 527, 650 P.2d 811. Nor is objection to erroneous instruction upon credibility. - Where an instruction upon credibility contains erroneous statements of law, it still satisfies the requirements of this rule, as this rule operates only when there is a complete failure to instruct upon a necessary issue; therefore, where the defendant makes no objection to such an instruction he will not be heard on appeal. State v. Cardona, 1974-NMCA-052, 86 N.M. 373, 524 P.2d 989, cert. denied, 86 N.M. 372, 524 P.2d 988. C. GENERAL PUBLIC INTEREST. Applicability of workers' compensation rule was of public interest. - Issue regarding the applicability of a workers' compensation rule could be considered for the first time on appeal, where it was in the public interest to alert workers' compensation division and the bar that new regulations would not apply to any case before the regulations were filed with the state records center. Pineda v. Grande Drilling Corp., 1991-NMCA-004, 111 N.M. 536, 807 P.2d 234. Disposition of mentally ill, delinquent children affects interests of state. - The question whether the children's court erred in committing mentally ill, delinquent children to the state boys' school and in ordering that psychiatric care be provided them at the school affects the interests of the state at large and is properly before the court of appeals, although not raised in the children's court. State v. Doe, 1977-NMCA-066, 90 N.M. 572, 566 P.2d 121. Freedom from illegal search is a matter of general public interest. - Where defendant, a driver who agreed to provide two breath test samples at a DWI checkpoint, but refused to submit to a blood test which subsequently formed the basis for aggravating her underlying conviction for DWI, failed to preserve her constitutional claim that she should not be punished under the Implied Consent Act for refusing to consent to and submit to a warrantless blood test, the Court of Appeals properly exercised its discretion to address the unpreserved argument, because freedom from illegal search and seizure is a fundamental right, which is a matter of general public interest, and an appellate court may exercise its discretion to consider an issue involving search and seizure protections even if it is not preserved by a defendant. State v. Vargas, 2017-NMSC-029, aff'g 2017-NMCA-023, 389 P.3d 1080. But not ruling on objection to closing argument. - The trial court's ruling on an objection to closing argument by the district attorney does not present any issue of substantial public interest. Deats v. State, 1969-NMSC-029, 80 N.M. 77, 451 P.2d 981. D. FUNDAMENTAL ERROR. 1. GENERALLY. Failure to comply with appellate rules does not prevent review of fundamental error. State v. Reynolds, 1968-NMCA-024, 79 N.M. 195, 441 P.2d 235. The doctrine of fundamental error is not applicable merely to excuse a failure to make a timely objection during trial. State v. Jett, 1991-NMSC-011, 111 N.M. 309, 805 P.2d 78. Doctrine protects indisputably innocent or very questionably guilty. - The doctrine of fundamental error is to be resorted to in criminal cases only for the protection of those whose innocence appears indisputable, or is open to such question that it would shock the conscience to permit the conviction to stand. State v. Sanders, 1950-NMSC-062, 54 N.M. 369, 225 P.2d 150; State v. Torres, 1967-NMCA-031, 78 N.M. 597, 435 P.2d 216; State v. Tapia, 1968-NMCA-048, 79 N.M. 344, 443 P.2d 514; State v. McFerran, 1969-NMCA-084, 80 N.M. 622, 459 P.2d 148, cert. denied, 80 N.M. 731, 460 P.2d 261; State v. Rodriguez, 1970-NMSC-073, 81 N.M. 503, 469 P.2d 148; State v. Luna, 1979-NMCA-048, 92 N.M. 680, 594 P.2d 340. The doctrine of fundamental error is to be resorted to in criminal cases only if the innocence of the defendant appears indisputable or the question of his guilt being so doubtful that it would shock the conscience to permit his conviction to stand. State v. Gomez, 1971-NMCA-009, 82 N.M. 333, 481 P.2d 412. Fundamental error applicable to issues raised by state. - The doctrine of fundamental error may be applicable to issues raised on appeal by the state. State v. Alingog, 1993-NMCA-124, 116 N.M. 650, 866 P.2d 378, rev'd on other grounds, 1994-NMSC-063, 117 N.M. 756, 877 P.2d 562. The doctrine of fundamental error is applicable only under exceptional circumstances and solely to prevent a miscarriage of justice, and applies only where the defendant's guilt is open to such question as would shock the conscience if the conviction were permitted to stand. State v. Jett, 1991-NMSC-011, 111 N.M. 309, 805 P.2d 78. To be fundamental, error must deprive defendant of rights essential to defense. - The doctrine of fundamental error has its place in this jurisdiction. The errors complained of must be such as go to the foundation of the case, and which deprive the defendant of rights essential to his defense. Smith v. State, 1968-NMSC-144, 79 N.M. 450, 444 P.2d 961. Fundamental error will only be involved to prevent a plain miscarriage of justice where the defendant has been deprived of rights essential to the defense. State v. Jaramillo, 1973-NMCA-029, 85 N.M. 19, 508 P.2d 1316, cert. denied, 85 N.M. 5, 508 P.2d 1302, 414 U.S. 1000, 94 S. Ct. 353, 38 L. Ed. 2d 236 (1973). To be fundamental, error must deprive the defendant of rights essential to his defense. State v. Jett, 1991-NMSC-011, 111 N.M. 309, 805 P.2d 78. When reviewing jury instruction issues for fundamental error. - When reviewing jury instruction issues for fundamental error, an appellate court first applies the standard for reversible error by determining if a reasonable juror would have been confused or misdirected by the jury instructions that were given. Juror confusion or misdirection may stem from instructions that, through omission or misstatement, fail to provide the jury with an accurate rendition of the relevant law. If it is determined that a reasonable juror would have been confused or misdirected by the instructions given, the fundamental error analysis requires the court to then review the entire record, placing the jury instructions in the context of the individual facts and circumstances of the case, to determine whether the defendant's conviction was the result of a plain miscarriage of justice. State v. Anderson, 2016-NMCA-007, cert. denied, 2015-NMCERT-012. Where defendant was tried for second-degree murder, and where the district court concluded that there was evidence to support the issuance of both the general self-defense instruction and the no-retreat instruction, UJI-14-5190 NMRA, it was the district court's duty to fully and clearly instruct the jury on both self-defense and no-retreat; the omission of UJI 14-5190 NMRA misdirected the jury and made the jury's understanding of all of the elements of the law governing self-defense deficient, because the jury could not determine whether defendant acted reasonably when he killed the victim without being informed as to whether New Mexico law deems it reasonable to stand-your-ground when retreat is possible. Defendant's conviction was tainted by fundamental error, and allowing his conviction to stand without adequate jury instructions would undermine judicial integrity and the legitimacy of the jury's verdict. State v. Anderson, 2016-NMCA-007, cert. denied, 2015-NMCERT-012. Missing element cured by separate instruction. - In a felony murder trial, where the defendant claimed he acted in self-defense, and where the felony murder jury instruction did not contain an element of unlawfulness, that is, the instruction did not instruct that the State must disprove self-defense beyond a reasonable doubt, it was fundamental error to omit the essential element. However, because the jury would not have been confused or misdirected where a separate and proper self-defense instruction was provided to the jury, the separate, properly submitted self-defense instruction cured any error. State v. Marquez, 2016-NMSC-025. Doubts concerning validity of verdict required. - Even if defendant did not raise proper objections at trial, he may be entitled to relief if the errors of which he complains on appeal constituted fundamental error. In any case, the appellate court must be convinced that admission of the testimony constituted an injustice that creates grave doubts concerning the validity of the verdict. State v. Barraza, 1990-NMCA-026, 110 N.M. 45, 791 P.2d 799. Fundamental error not equivalent to fundamental right. - There is a difference between a fundamental right and fundamental error. The theory of fundamental error is bottomed upon the innocence of the accused or a corruption of actual justice and such error cannot be waived. On the other hand, most rights, however fundamental, may be waived or lost by the accused. State v. Rogers, 1969-NMCA-034, 80 N.M. 230, 453 P.2d 593. Fundamental error may be first raised on appeal. - Fundamental error is error which goes to the foundation of the case or which takes from a defendant a right essential to his defense. Where it appears and justice requires, the appellate court will consider it whether or not exceptions are taken in the court below or whether or not it is assigned as error on appeal. State v. Romero, 1974-NMSC-042, 86 N.M. 244, 522 P.2d 579. Paragraph B(2) of this rule allows the Court of Appeals to consider questions of fundamental error even if the issue was not preserved below. State v. Boergadine, 2005-NMCA-028, 137 N.M. 92, 107 P.3d 532, cert. denied, 2005-NMCERT-003. But reviewing court's discretion applied guardedly and only where fundamental right invaded. - A reviewing court will exercise its discretion of fundamental error very guardedly, and only when some fundamental right has been invaded, but never in aid of strictly legal, technical or unsubstantial claims. State v. Lott, 1963-NMSC-219, 73 N.M. 280, 387 P.2d 855; State v. Chacon, 1969-NMCA-112, 80 N.M. 799, 461 P.2d 932. Application of fundamental error in civil cases limited. - The doctrine of fundamental error should be applied in civil cases only under the most extraordinary and limited circumstances. Freeman v. Fairchild, 2015-NMCA-001, cert. granted, 2014-NMCERT-012. Doctrine cannot excuse failure to make proper objections. - The fundamental error rule is to be applied sparingly to prevent a miscarriage of justice; it is not to be applied to excuse a failure to make proper objections in the court below. State v. Tapia, 1968-NMCA-048, 79 N.M. 344, 443 P.2d 514. Fundamental error determined on case by case basis. - Error that is fundamental must be such error as goes to the foundation or basis of a defendant's rights or must go to the foundation of the case or take from the defendant a right which is essential to his defense, and no court could or ought to permit the defendant to waive this right; in determining whether fundamental error exists, each case must stand on its own. State v. Gillihan, 1973-NMSC-090, 85 N.M. 514, 514 P.2d 33. Showing on appeal fundamental nature of error helpful. - While preservation of error is not scrupulously required in situations where the fundamental rights of parties are involved, at least some showing on appeal of the suggested fundamental or jurisdictional nature of the error is helpful. Further, fundamental error will only be heard to prevent a plain miscarriage of justice where someone has been deprived of rights essential to a defense, or to protect those whose innocence appears indisputable, or open to such question that it would shock the conscience to permit the conviction to stand. Doe v. State, 1975-NMCA-108, 88 N.M. 347, 540 P.2d 827, cert. denied, 88 N.M. 318, 540 P.2d 248. Supplemental brief allowed to show fundamental error disregarded absent showing of fundamental error. - Where no fundamental error is disclosed upon the examination of a supplemental brief, the leave for filing of which was granted on a representation of fundamental error, such a brief shall be disregarded. State v. Till, 1967-NMSC-150, 78 N.M. 255, 430 P.2d 752, cert. denied, 390 U.S. 713, 88 S. Ct. 1426, 20 L. Ed. 2d 254 (1968). Violation of fundamental right. - In replevin of automobile, where it was alleged and denied that defendant bought same knowing that plaintiff held title under conditional sale contract, and proof of knowledge was essential to recovery, judgment for plaintiff in the absence of such proof violated a fundamental right which the court would protect, even though question was first raised on appeal. Schaefer v. Whitson, 1927-NMSC-065, 32 N.M. 481, 259 P. 618. 2. DOCTRINE FOUND APPLICABLE. Failure to allow participation in parental rights hearing. - Failure to allow a parent to defend against the termination of her parental rights is fundamental error. State ex rel. Children, Youth & Families Dep't v. Steven R., 1999-NMCA-141, 128 N.M. 304, 992 P.2d 317. Doctrine applicable where lack of evidence to support finding respondent committed delinquent act. - Where counsel at a delinquency trial adequately notifies the court of the lack of evidence to support any finding of the respondents having committed the act alleged, although the point is not raised on appeal, the scope of review would consider it as a question involving the fundamental rights of a party. Doe v. State, 1975-NMCA-108, 88 N.M. 347, 540 P.2d 827, cert. denied, 88 N.M. 318, 540 P.2d 248. Application of doctrine to murder charges. - The questions of whether a crime existed for attempted "depraved mind" murder and whether attempted second degree murder was proved, as applied to the facts of the case, could be raised for the first time on appeal by the court, although not raised below or on appeal by the parties involved; otherwise, fundamental error would go uncorrected. State v. Johnson, 1985-NMCA-074, 103 N.M. 364, 707 P.2d 1174. Where exculpatory evidence, plus absence of evidence to support conviction, conviction set aside. - If there is a total absence of evidence to support a conviction, as well as evidence of an exculpatory nature, then an appellate court has the duty to see that substantial justice is done and to set aside the conviction. State v. Reynolds, 1968-NMCA-024, 79 N.M. 195, 441 P.2d 235; State v. Tapia, 1968-NMCA-048, 79 N.M. 344, 443 P.2d 514; State v. Luna, 1979-NMCA-048, 92 N.M. 680, 594 P.2d 340. Fundamental error requires certainty in instruction defining crime. - The issue as to an erroneous instruction may be raised in the appellate court for the first time because fundamental error, or due process, requires that there be certainty applied to the definition of the crime. State v. Buhr, 1971-NMCA-017, 82 N.M. 371, 482 P.2d 74. And where basis of verdict cannot be discerned, new trial awarded. - Where the court has no way of knowing, because of an erroneous instruction, whether a murder conviction is or is not on the basis of premeditated killing, there is fundamental error, and the defendant will be awarded a new trial. State v. Buhr, 1971-NMCA-017, 82 N.M. 371, 482 P.2d 74. Claim that hearing is not fair and impartial falls within fundamental error exception. State v. Pacheco, 1973-NMCA-155, 85 N.M. 778, 517 P.2d 1304. Prosecutor's reference to silence of defendant deemed plain error. - The district attorney's question concerning the defendant's silence is plain error because it is a comment on the defendant's silence, and as such can be first raised on appeal. State v. Lara, 1975-NMCA-095, 88 N.M. 233, 539 P.2d 623. Where the prosecutor comments on or inquires about the defendant's silence, such a reference can have an intolerable prejudicial impact and may require reversal under the "plain error" rule of the Rules of Evidence. Any reference to the defendant's silence by the state, if it lacks significant probative value, constitutes plain error and, as such, it would require reversal even if the defendant fails to timely object. However, where a witness refers to the defendant's silence, the defendant must object to this testimony in order to preserve the error (objecting to the testimony of the witness as being inadmissible under either former Rule 402 or former Rule 403, N.M.R. Evid. (see now Rules 11-401 and 11-402 )). State v. Baca, 1976-NMSC-015, 89 N.M. 204, 549 P.2d 282. Right to effective counsel always subject to review. - The right to effective counsel is a fundamental right subject to review regardless of adherence to procedural rules. State v. Luna, 1979-NMCA-048, 92 N.M. 680, 594 P.2d 340. Failure to offer opportunity to withdraw plea. - District court's failure to offer defendant the opportunity to withdraw his plea after the court refused to accept the prosecutor's sentencing recommendation pursuant to a plea agreement between the state and defendant was fundamental error, requiring a remand to the court with instructions either (1) to resentence defendant in conformity with the plea agreement or (2) to permit defendant to withdraw his plea. State v. Bencomo, 1990-NMCA-028, 109 N.M. 724, 790 P.2d 521. Failure to properly instruct jury. - The failure to instruct the jury on the essential elements of an offense constitutes fundamental error. Where fundamental error is involved, it is irrelevant that the defendant was responsible for the error by failing to object to an inadequate instruction or by objecting to an instruction which might have cured the defect in the charge to the jury. State v. Osborne, 1991-NMSC-032, 111 N.M. 654, 808 P.2d 624. Trial court's failure to provide the jury with an instruction that adequately defined the proper culpable mens rea for negligent child abuse was fundamental error. State v. Mascarenas, 2000-NMSC-017, 129 N.M. 230, 4 P.3d 1221. 3. DOCTRINE NOT FOUND APPLICABLE. Where the decedent was killed in a collision with the driver's vehicle; defendant knew that the driver, who worked at defendant's place of business, was an alcoholic and drank beer while working; plaintiff alleged that defendant was negligent in hiring, supervising and retaining the driver as an employee; both parties requested a scope of employment instruction; the trial court, with the consent of both parties, answered two questions from the jury related to the scope of employment instruction; after trial, defendant moved for judgment as a matter of law, insisting that the jury instructions were the law of the case; and at the hearing on the motion, defendant for the first time argued that the scope of employment instruction should not have been given, defendant invited the jury instruction error and if the instruction constituted fundamental error, it did not warrant a remand for a new trial, because a finding of "scope of employment" was consistent with a finding of causation under a negligent supervision theory. Estate of Gutierrez v. Meteor Monument, LLC, 2012-NMSC-004, 274 P.3d 97. Entry of order without presentment hearing. - In a divorce proceeding, where the court entered an order specifically determining the wife's share of community assets without notice to the husband and without a presentment hearing and the husband did not file a motion to vacate the order, the fundamental right exception to the preservation rule did not apply. Muse v. Muse, 2009-NMCA-003, 145 N.M. 451, 200 P.3d 104. No fundamental error. - Where the state's key witness made inconsistent statements in a deposition and at trial; defense counsel objected to the state's direct examination of the witness about which version of the witness's testimony was true on the grounds that the witness should be provided an attorney to advise him about his Fifth Amendment rights against self-incrimination; the state responded that it did not intend to prosecute the witness for perjury even if he had lied during his deposition and that the trial court could grant the witness immunity from future perjury prosecution; the trial court prevented defense counsel from inquiring into the possibility that the state had promised to grant the witness immunity in exchange for his testimony, but allowed defense counsel wide latitude in cross-examining the defendant on his inconsistent statements and any prior untrue statements he made under oath, the trial court's limitation of defendant's right of cross-examination of the witness, while error, was not fundamental error State v. Silva, 2008-NMSC-051, 144 N.M. 815, 192 P.3d 1192. No fundamental error where defendant's sentence was consistent with the governing statutes. - Following defendant's conviction for second-degree murder, the district court judge heard from nine witnesses on defendant's behalf, but declined to mitigate defendant's sentence. Defendant was entitled to no more than a sentence prescribed by law, and it was within the district court's discretion to decline to mitigate defendant's sentence. State v. Suskiewich, 2016-NMCA-004, cert. denied, 2015-NMCERT-011. No fundamental error where charges were within the limits of prosecutorial discretion. - Where the evidence established, and defendant conceded, that he directed a third person to deliver methamphetamine and synthetic cannabinoids to an inmate incarcerated in the Curry County Detention Center, the prosecutor's decision to charge defendant under the trafficking statute rather than charging defendant as an accessory to bring contraband into the jail did not give rise to fundamental error, because, although the state could have charged defendant as an accessory to bringing contraband into a jail, the evidence was sufficient to charge him with trafficking and the prosecutor's decision to do so was well within the limits of prosecutorial discretion. State v. Salazar, 2018-NMCA-030, cert. denied. The district court's failure to give jury verdict forms that distinguished between alternative theories of guilt did not give rise to fundamental error when the jury was properly instructed. - Where defendant was charged with trafficking methamphetamine and distribution of synthetic cannabinoids, the district court's failure to give jury verdict forms that distinguished between conspiracy to traffic controlled substances and conspiracy to distribute synthetic cannabinoids did not give rise to fundamental error when the jury instructions distinguished between conspiracy to traffic controlled substances and conspiracy to distribute synthetic cannabinoids as alternative theories of guilt. State v. Salazar, 2018-NMCA-030, cert. denied. Prosecutor's comment on accomplice's refusal to testify did not give rise to fundamental error. - Where defendant was charged with trafficking methamphetamine and distribution of synthetic cannabinoids based on evidence that an accomplice, at the direction of defendant, delivered methamphetamine and synthetic cannabinoids hidden in deodorant sticks to an inmate confined in the Curry County Detention Center, the prosecutor's comments concerning the accomplice's reason for not testifying at trial did not constitute fundamental error, because the state simply argued that the evidence presented in the case was sufficient to convict defendant notwithstanding the fact that the accomplice chose not to cooperate with the police or take the stand to testify against her cousin, defendant. The prosecutor's comments were not so egregious that they deprived defendant of a fair trial. State v. Salazar, 2018-NMCA-030, cert. denied. Failure of counsel to preserve error not fundamental error. - The failure of counsel to preserve error is not a grounds for exercise of the power to declare fundamental error. State v. Lott, 73 N.M. 280, 387 P.2d 855 (1963). Use note instruction. - Absent an objection by defendant, failure to instruct on a definition contained in a Use Note did not elevate the definition to an essential element; failure to instruction on the definition was not fundamental error. State v. Barber, 2003-NMCA-053, 133 N.M. 540, 65 P.3d 1095. No fundamental error where instruction defining "intentional" used the phrase "failure to act". - Where jury in child abuse case was correctly instructed to find that defendant performed an intentional act, not a failure to act, to convict her of intentional child abuse, but where the instruction defining "intentional" (UJI 14-610 (withdrawn 2015)) uses the phrase "failure to act", there was no fundamental error because the State's theory was based entirely on evidence of what defendant did, not on what she failed to do, a theory amply supported by substantial evidence; there was no significant risk of jury confusion, substantial injustice, or a doubtful verdict. State v. Cabezuela, 2015-NMSC-016. Defendant's conviction as an accessory, even though he was only charged as a principal, did not result in fundamental error. - Where defendant failed to preserve his challenge to the jury instruction on accessory liability, and was convicted as an accessory to first-degree murder, fundamental error did not occur because New Mexico has abolished the distinction between accessory and principal liability; the charge as principal includes a corresponding accessory charge, and defendant was therefore on notice that he could be convicted as an accessory even though he was only charged as a principal. State v. King, 2015-NMSC-030. Neither is lack of advice on legal effect of guilty plea. - The claim that the defendant has not been fully advised of the legal effect of his prior plea of guilty presents neither a jurisdictional claim nor fundamental error. Where no ruling on the point has been invoked in the sentencing court, none will be made on a motion to vacate sentence. State v. Brewer, 1967-NMSC-105, 77 N.M. 763, 427 P.2d 272. Doctrine cannot excuse failure to object to questions asked on voir dire. - The fundamental error rule does not apply to a situation where no objections are made to the questions asked on voir dire and no motion is made for a mistrial or a new trial on the ground asserted to be fundamental error, because the appellate court has always applied the rule sparingly, to prevent a miscarriage of justice, and not to excuse failure to make proper objections in the court below. State v. Aull, 1967-NMSC-233, 78 N.M. 607, 435 P.2d 437, cert. denied, 391 U.S. 927, 88 S. Ct. 1829, 20 L. Ed. 2d 668 (1968). Fundamental error did not occur due to defendant's absence from the jury culling process. - In a murder trial, where defendant's counsel, without defendant's presence, and counsel for the state conferenced with the district court judge to discuss jury questionnaires, the process employed by the district court was part of the culling process at which defendant had no fundamental right to be present because culling is basically an administrative process occurring outside the presence of the jurors during which defendant can provide no special insight into the removal of jurors from the pool who are disqualified or excused on statutory grounds, unlike the process of challenging potential jurors where the defendant may be able to discern some bias or prejudice. Fundamental error did not occur due to defendant's absence from the conference on the jury questionnaires. State v. Astorga, 2016-NMCA-015, cert. denied, 2015-NMCERT-012. Fundamental error did not occur due to defendant's absence from a pretrial deposition of a witness. - In a murder case, where, due to an acute medical condition, one witness's pretrial deposition was taken in her hospital room without defendant's presence, fundamental error did not occur where defendant had notice of the witness's deposition, was fully represented at the deposition by defense counsel, did not object to its use at trial, and in fact used the deposition in his defense. State v. Astorga, 2016-NMCA-015, cert. denied, 2015-NMCERT-012. Nor can it be applied to voluntary statement made after arrest. - Where a statement is obtained on the day of arrest and is voluntarily made without any inducement or threat, there is no basis for the application of the doctrine of fundamental error. State v. Olguin, 1968-NMSC-012, 78 N.M. 661, 437 P.2d 122. Loss of fundamental right of cross-examination not fundamental error. - If fundamental error exists it is not because of the loss of the fundamental right of cross-examination. Fundamental error is a doctrine resorted to in a criminal case only if the innocence of the defendant appears indisputable or the question of guilt is so doubtful that it would shock the conscience to permit the conviction to stand. State v. Rogers, 1969-NMCA-034, 80 N.M. 230, 453 P.2d 593. Ineffective counsel must render trial farce to be considered fundamental error. - An appellant court is responsible to see that a person accused of a crime shall have a fair trial with a proper defense. The obligation on review, however, is to affirm a conviction unless the record reveals a very real possibility of a miscarriage of justice. Unless there is affirmative evidence that the trial was a sham, a farce or a mockery the court cannot say that defendant had ineffective counsel. State v. Chacon, 1969-NMCA-112, 80 N.M. 799, 461 P.2d 932. Single criminal intent doctrine. - Court did not commit fundamental error by refusing to instruct jury that the state was required to prove that each instance of embezzlement charged was the result of a distinct criminal impulse; the single criminal intent doctrine no longer applies to embezzlement cases, in light of the 1995 amendments to the embezzlement statute. State v. Faubion, 1998-NMCA-095, 125 N.M. 670, 964 P.2d 834, cert. denied, 125 N.M. 322, 961 P.2d 167. Substantial evidence to support verdict negatives resort to fundamental error. - If there is substantial evidence to support the verdict of the jury, the supreme court will not resort to fundamental error. State v. Rodriguez, 1970-NMSC-073, 81 N.M. 503, 469 P.2d 148. Fundamental error analysis of jury instruction on criminal sexual contact of a minor and jury instruction defining "sexual intercourse". - The first component in a fundamental error analysis requires the court to determine whether a reasonable juror would have been confused or misdirected by the jury instruction; if there is instructional error, then the court must review the entire record, placing the instruction in the context of the individual facts and circumstances of the case, to determine whether the defendant's conviction was a plain miscarriage of justice; there is no miscarriage of justice where, despite any misunderstanding by the jury, the circumstances of the case demonstrate that all the necessary elements of the offense were satisfied beyond a reasonable doubt. State v. Tapia, 2015-NMCA-048, cert. denied, 2015-NMCERT-004. Where UJI 14-982 NMRA defines "sexual intercourse" as penetration of the vulva or the vagina and there ultimately can be no contact with the vagina without a penetration of the vulva occurring because the opening of the vagina is encompassed with the vulva, see UJI 14-981 NMRA, the language of the criminal sexual contact of a minor instruction CSCM could have resulted in some juror confusion because it is impossible to contact the vagina without penetrating the vulva, resulting in criminal sexual penetration; however, where defendant was convicted of CSCM based on his four-year-old stepdaughter's testimony describing how defendant unzipped her pajamas, pulled down her underwear, and lay on top of her with his unclothed "private" touching her unclothed "private," there was sufficient evidence to establish that defendant touched or applied force to the vagina, and the jury could have reasonably determined that defendant touched her unclothed groin area with his penis, amounting to CSCM; no distinct possibility exists from the evidence that the jury convicted defendant without finding all the elements beyond a reasonable doubt; the instruction defining "sexual intercourse", even though arguably flawed from the standpoint of anatomical definitional accuracy, did not create such confusion in the jury that it would undermine the judicial process. State v. Tapia, 2015-NMCA-048, cert. denied, 2015-NMCERT-004. Prosecutor's improper comment on victim's "constitutional rights" not plain error. - New Mexico has no rule that would support the defendant's assertion that an allegedly improper comment of the prosecutor on the victim's "constitutional rights" can be raised for the first time on appeal on the basis that the comment was plain error. State v. Sanchez, 1974-NMCA-107, 86 N.M. 713, 526 P.2d 1306. Actions of the prosecutor did not cause fundamental error. - Where defendant was charged with being a felon in possession of a firearm after taking a gun inside a Las Cruces club, the prosecutor's references to defendant's pending lawsuit against the city of Las Cruces or in not calling certain officers involved in defendant's arrest did not cause fundamental error, because the evidence the prosecutor referred to had been admitted and the prosecutor was free to comment on it, and the prosecutor's discretionary decision not to call certain witnesses did not constitute misconduct. State v. Jimenez, 2017-NMCA-039, cert. denied. Contention that constitutional right to confront accusers denied found not reviewable. State v. Doe, 1977-NMCA-078, 91 N.M. 92, 570 P.2d 923. No fundamental error where supervising pathologist testified regarding personal observations and personal knowledge. - Where defendant was charged with intentional child abuse resulting in the death of a child, the court admitted the testimony of the forensic pathologist who supervised and worked alongside another pathologist during the autopsy of the decedent; both pathologists examined the injuries and the organs together, both decided which tests to perform, both observed the injuries in the head and brain, and they both compiled their opinion in the autopsy report; there was no confrontation clause violation, and thus no fundamental error, where the supervising pathologist made independent, personal observations and had personal knowledge regarding the decedent's death sufficient to support her testimony and opinions. State v. Cabezuela, 2015-NMSC-016. Objection waived. - Where defense counsel made the tactical decision that, in the absence of live testimony by a defendant's wife, the prior testimony of his wife would be advantageous to the defendant, there was neither plain error nor fundamental error in admitting the testimony, even though the evidence would have been inadmissible if either party had objected. State v. Crislip, 1990-NMCA-054, 110 N.M. 412, 796 P.2d 1108, overruled on other grounds, Santillanes v. State, 1993-NMSC-012, 115 N.M. 215, 849 P.2d 358. Law reviews. - For article, "The Writ of Prohibition in New Mexico," see 5 N.M.L. Rev. 91 (1974). For article, "The Admissibility of Scientific Evidence Under the New Mexico and Federal Rules of Evidence," see 6 N.M.L. Rev. 187 (1976). For annual survey of New Mexico law relating to civil procedure, see 12 N.M.L. Rev. 97 (1982). For note, "Constitutional Law - The Effect of State Constitutional Interpretation on New Mexico's Civil and Criminal Procedure - State v. Gomez," see 28 N.M.L. Rev. 355 (1998). Am. Jur. 2d, A.L.R. and C.J.S. references. - 5 Am. Jur. 2d Appellate Review § 690 et seq. Will questions which might have been, but were not, raised on prior appeal or error, be considered on subsequent appeal or error, 1 A.L.R. 725. Relaxation in favor of infant of rule regarding condition of raising question on appeal or error, or on motion for new trial, 87 A.L.R. 672. Appellate review of trial court's discretion upon motion for new trial in criminal case because of newly discovered evidence as to sanity of prosecution witness, 49 A.L.R.2d 1247. Participation in, acceptance of, or submission to new trial as precluding appellate review of order granting it, 67 A.L.R.2d 191. When will federal court of appeals review issue raised by party for first time on appeal where legal developments after trial affect issue, 76 A.L.R. Fed. 522. 5 C.J.S. Appeal and Error § 702 et seq.