This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restricti ons on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 STATE OF NEW MEXICO, 2 Plaintiff-Appellee, 3 v. No. 33,803 4 NATALIE MASCARENAS, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 7 Darren Kugler, District Judge 8 Gary K. King, Attorney General 9 Margaret McLean, Assistant Attorney General 10 Santa Fe, NM 11 for Appellee 12 Almanza Abrams, P.A. 13 Jared Abrams 14 Las Cruces, NM 15 for Appellant 16 MEMORANDUM OPINION 17 SUTIN, Judge. 182 {1} Defendant appeals her convictions fo r encouraging violation of probation, 1 parole, or bail, contrary to NMSA 1978, Section 30-22-18 (1963). We issued a notice 2 of proposed disposition proposing to affirm, and Defendant ha s responded with a 3 motion to admit an affidavit, a memorandum in opposition, and a renewed motion to 4 review conditions of release pending appeal. We have carefully reviewed Defendant’s 5 submissions. However, for the reasons disc ussed in this Opinion and in the notice of 6 proposed disposition, we deny the motion to admit the affidavit; construe a portion of 7 the memorandum in opposition as a motion to amend the docketing statement and 8 deny that motion; deny the motion to review conditions of release as moot; and affirm 9 Defendant’s convictions. 10
{2} We first address the motion to admit th e affidavit. Defendant has submitted to 11 this Court the affidavit of an employee w ho provides security at the courthouse where 12 Defendant was tried. The affidavit indicates that at an early point during Defendant’s 13 trial, a sign was placed in front of the courtroom reading, “DO NOT ENTER VOIR 14 DIRE & OPENING STATEMENTS IN PROGRE SS.” [Mot. to Admit Aff. Exh. 1] 15 Defendant contends this affi davit proves that these portions of her trial were not open 16 to the public, in violation of her constitutional rights. See State v. Turrietta , 2013- 17 NMSC-036, ¶¶ 14-19, 308 P.3d 964 (discussing constitutional right to public trial). 18 However, this affidavit was not presented to the district court at any time, and we 193 cannot consider it on appeal. See, e.g. , Thomasson v. Johnson , 1995-NMCA-109, ¶ 6, 1 120 N.M. 512, 903 P.2d 254 (holding that an affi davit that was not before the district 2 court was not of record and could not be reviewed on appeal). As we discuss in this 3 Opinion, Defendant’s “closureof the courtroom” argument must be first presented to 4 the district court before it may be reviewed on appeal, whether that review is provided 5 by this Court or the Supreme Court. Wetherefore deny the motion to admit the 6 affidavit as part of the record in this appeal. 7
{3} The first issue argued in the memorandum in opposition is based on the 8 affidavit that Defendant has attempted to place before this Court. That issue was not 9 raised in the docketing statement; we therefore construe Defendant’s argument as a 10 motion to amend the docketing statement. However, for the reasons set out here we 11 deny that motion because the issue Defendant attempts to raise is not viable on the 12 record that is currently before this Court. See State v. Sommer , 1994-NMCA-070, 13 ¶ 11, 118 N.M. 58, 878 P.2d 1007 (denying a motion to amend the docketing 14 statement because the argument sought to be raised was not viable). 15
{4} This Court is a court of re view and not a fact-finding court. Therefore, we may 16 not consider evidentiary materials that were not before the district court at the time the 17 judgment was entered. See Thomasson , 1995-NMCA-109, ¶ 6. Defendant attempts 18 to evade this general rule by pointing out that the improper closure of a courtroom 194 constitutes structural error that need not be preserved to be raised on appeal. [8/7/14 1 MIO 7] We agree that the right to a pub lic trial may implicate the structural-error 2 doctrine. See Turrietta, 2013-NMSC-036, ¶ 14 (suggesting same, although not clearly 3 deciding the issue). This does not mean, how ever, that a defendant may raise the issue 4 for the first time on appeal where the n ecessary facts were not developed below. 5
{5} Even where fundamental rights are concerne d, or issues are allowed to be raised 6 for the first time on appeal, an adequate factual record must have been developed 7 below; otherwise, the defendant will be required to pursue some type of remedy in 8 district court before attempting to rais e the issue at the appellate level. See, e.g. , 9 Garcia v. State , 2010-NMSC-023, ¶ 28, 148 N.M. 414, 237 P.3d 716 (discussing fact 10 that effective assistance of counsel is a fundamental right, but must be pursued 11 through a habeas corpus proceeding if the f acts necessary to deci de the issue are not 12 part of the record on appeal); State v. Wood, 1994-NMCA-060, ¶ 19, 117 N.M. 682, 13 875 P.2d 1113 (pointing out that even though a double jeopardy defense may be raised 14 at any time, including for the first time on appeal, a factual basis supporting the 15 defense must be present in the record). Inthis case, the claim was not raised below 16 and there are no facts in the district court record supporting Defendant’s claim. 17 Furthermore, the evidence submitted by Defendant to this Court does not establish as 18 a matter of law that her constitutional rights were violated. The mere presence of the 195 sign described in the affidavit raises morequestions than it answers. For example, 1 was anyone actually turned away by the sign? Does that matter for purposes of the 2 constitutional right in questi on? Was the courtroom clos ed only after the proceedings 3 had already begun, so spectators had an opportunity to enter prior to the 4 commencement of the pro ceedings? Again, does that matter for purposes of 5 Defendant’s constitutional right, or does th e Constitution require a court to allow 6 spectators to come and go as they please during a trial? These questions and perhaps 7 others must be answered by the district court, after the State has an opportunity to 8 weigh in on them, before De fendant’s courtroom-closure claim may be addressed at 9 the appellate level, with a full record to re view. At this point, therefore, the issue 10 Defendant attempts to raise is not viableon the record properly before us, and we 11 deny her motion to amend the docketing statement to raise the issue. 12
{6} Defendant renews her argument that her due process rights were violated when 13 the jury was given identical jury instructi ons for three different counts, all charging 14 her with the offense of encouraging violation of probation, paro le, or bail, and all 15 naming the same date as the date of co mmission of the offenses. Defendant again 16 suggests the jury was confused by the identi cal instructions and may have thought the 17 identical dates in the instructions were typographical errors. 186 {7} In the notice of proposed disposition, we discussed the fact that Defendant did 1 not object to the instructions below and thus failed to preserve this issue for appeal. 2 We therefore proposed to review the issue only for fundamental error. See State v. 3 Benally , 2001-NMSC-033, ¶ 12, 131 N.M. 258, 34 P.3d 1134 (stating that where no 4 error was preserved regarding a jury instruc tion, the appellate c ourt’s review is only 5 for fundamental error). In doing so, we first proposed to hold that the jury in this case 6 was ultimately not confused by the identical instructions, because a question 7 submitted by the jury during deliberations id entified at least three separate acts by 8 Defendant that would constituteviolations of the encouraging-violation-of-probation 9 statute. [CN 5] We next proposed to hol d that, even if somejuror confusion had 10 occurred, there was no miscarriage of justice inthis case. We pointed out that the State 11 presented evidence of a number of different ways in which Defendant encouraged the 12 probationer to violate the conditions of her probation. [CN 5-6] The jury found 13 Defendant guilty of three counts of that offense, and the three convictions were 14 supported by the State’s evidence, indicating that no fundamental error occurred. See 15 State v. Barber , 2004-NMSC-019, ¶ 19, 135 N.M. 621, 92 P.3d 633 (holding, in the 16 jury instruction context, that fundamental error is present where a plain miscarriage 17 of justice has occurred). 187 {8} In the memorandum in opposition, Defendant does not address the fundamental 1 error aspect of the analysis contained in the notice of proposed disposition. Instead, 2 Defendant argues only the first portion of the fundamental error test as it is applied to 3 jury instructions—that the instructions would have confused or misdirected a 4 reasonable juror. See id. We hold, however, that even if that is true, no fundamental 5 error occurred in this case. As we pointed out in the notice, the jury’s notes focused 6 on at least three different ways in whic h Defendant was accused of violating the 7 applicable statute, and the jury ultimately found Defendant guilty of three separate 8 counts. Furthermore, we presume that th e jury followed its instructions and limited 9 its consideration to events that occurre d on or about December 11, 2011. Finally, we 10 note that Defendant does not argue there wa s insufficient evidence to convict her of 11 three separate counts of encouraging violation of probation. We therefore decline to 12 find that a miscarriage of justice o ccurred here, and we affirm Defendant’s 13 convictions. 14
{9} Due to the foregoing affirmance of De fendant’s convicti ons, her renewed 15 motion for release pending appeal is moot, and we deny it on that basis. 16
{10} IT IS SO ORDERED. 17

__________________________________ 18 JONATHAN B. SUTIN, Judge 19 WE CONCUR: 208 _______________________________ 1 JAMES J. WECHSLER, Judge 2

_______________________________ 3 CYNTHIA A. FRY, Judge 4