Whether or not the stickers can be viewed by an officer while driving is not a matter of record. See State v. Romero, 87 N.M. 279, 280, 532 P.2d 208, 209 (Ct.App. 1975) (holding that "[m]atters outside the record present no issue for review"). We further decline Defendant's invitation to take judicial notice on this point, as the readability of registration stickers will vary depending on the distance between the two vehicles and a host of other factors.
"If otherwise, an accused is denied the right to confront the witnesses against him." And as we further stated in State v. Romero, 87 N.M. 279, 532 P.2d 208 (Ct.App. 1975): "It has long been recognized that a transcript of prior testimony is a most useful tool in mounting an attack upon the credibility of witnesses.
We may not review matters that are outside the record. See State v. Romero, 87 N.M. 279, 280, 532 P.2d 208, 209 (Ct.App. 1975) (refusing to review trial court's refusal to grant motion to suppress because record did not include transcript of hearing on that motion). {7} Antillon made a motion to the trial court to supplement the record with these documents, but the motion was denied.
Cf. SCRA 1986, 5-608(D) (Repl. Pamp. 1992) (requiring the tender of correct instructions); State v. Romero, 87 N.M. 279, 280, 532 P.2d 208, 209 (Ct.App. 1975) (same). The Defendant's requested mistake of fact instruction, which was patterned after SCRA 1986, 14-5120, reads as follows:
First, while conceding that the trial court is required to "instruct the jury upon all questions of law essential for a conviction of any crime submitted to the jury," SCRA 1986, 5-608(A) (Repl.Pamp. 1992), the State asserts that Defendant has not preserved this issue for review because at trial he neither objected to the instruction given nor offered a correct instruction regarding fraudulent intent, SCRA 1986, 5-608(D); State v. Romero, 87 N.M. 279, 532 P.2d 208 (Ct.App. 1975); State v. Garcia, 100 N.M. 120, 666 P.2d 1267 (Ct.App.), cert. denied, 100 N.M. 192, 668 P.2d 308 (1983). Second, the State insists that because Defendant failed to preserve the issue by objecting or proffering a correct instruction, his conviction can be reversed only under the doctrine of fundamental error.
The scope of appellate review by the supreme court is limited to consideration of those matters disclosed by the record, State v. Buchanan, 78 N.M. 588, 435 P.2d 207 (1967), and matters outside the record present no issue for review. State v. Smith, 92 N.M. 533, 591 P.2d 664 (1979) (citing State v. Romero, 87 N.M. 279, 532 P.2d 208 (Ct.App. 1975). The reviewing court will not go outside the record in a criminal case.
This requires a proper objection or tendering of a proper instruction. See State v. Romero, 87 N.M. 279, 532 P.2d 208 (Ct.App. 1975); State v. Urban, 86 N.M. 351, 524 P.2d 523 (Ct.App. 1974); State v. Romero, 86 N.M. 99, 519 P.2d 1180 (Ct.App. 1974). The trial court has a duty to correctly instruct the jury on the law.
Matters outside the record present no issue for review. State v. Romero, 87 N.M. 279, 532 P.2d 208 (Ct.App. 1975). POINT II
Under these circumstances, defendant abandoned this point on appeal, State v. Vogenthaler, 89 N.M. 150, 548 P.2d 112 (Ct.App. 1976), and there is no record upon which the review in this Court can be predicated. State v. Lujan, 79 N.M. 200, 441 P.2d 497 (1968); State v. Romero, 87 N.M. 279, 532 P.2d 208 (Ct.App. 1975). The burden is on appellant to provide the necessary record in this Court.
SeeProper v. Mowry , 1977-NMCA-080, ¶ 37, 90 N.M. 710, 568 P.2d 236 ("Remarks, arguments and statements of lawyers are not evidence." (internal quotation marks and citation omitted) ); State v. Romero , 1975-NMCA-017, ¶ 2, 87 N.M. 279, 532 P.2d 208 ("Matters outside the record present no issue for review."). CONCLUSION