All the Pretty Horses: Preserving Issues for Appellate Review

By Ben P. McGreevy

Beautiful Wild Horses in Spring. Photo Credit: @natureguy via Adobe Stock.

“Between the wish and the thing the world lies waiting.”[i]

When arguing an issue, one should take care to ensure that the issue is properly preserved for appellate review.  Think of issue preservation as controlling what horse you may ride into court on appeal.  The Idaho Supreme Court has distinguished between “a party riding on a horse that has been groomed and reshod for the appellate process,” and “a party entering the appellate process riding a similar-looking but entirely new horse.”[ii]  “A groomed horse is expected on appeal, but a different horse is forbidden.”[iii]

This article will cover the rationales for issue preservation, summarize the Idaho Supreme Court’s recent jurisprudence on preserving issues, explore two exceptions to the issue preservation requirement, and offer some tips for practitioners for properly preserving issues for appellate review.

The Rationales for Issue Preservation

Generally, Idaho’s appellate courts will not consider errors not preserved for appeal through a timely objection in the trial court.[iv]  The requirement to preserve issues “applies equally to all parties on appeal.”[v]  The Idaho Supreme Court has made clear, “We will not hold that a trial court erred in making a decision on an issue or a party’s position on an issue that it did not have the opportunity to address.”[vi]  Appellate court review is generally limited to the evidence, theories and arguments that were presented in the trial court.[vii]

Idaho courts have long recognized that it would be unfair for parties to “slumber” on their defenses and first present their objections to the appellate courts.[viii]  The Supreme Court of the Territory of Idaho explained, “Such a practice would destroy the purpose of an appeal and make the supreme court one for deciding questions of law in the first instance.”[ix]  More recently, the Idaho Supreme Court reasoned that “requiring a contemporaneous objection prevents the litigant from sandbagging the court.”[x]  The Court has also held that allowing a party “to change position on appeal would be unfair” to the opposing party, “because it did not have the opportunity to address and respond at the district court level.”[xi]

The Idaho Supreme Court recently explained that issue preservation serves “to induce the timely raising of claims and objections, which gives the trial court the opportunity to consider and resolve them.”[xii]  “Ordinarily, the trial court is in the best position to determine the relevant facts and to adjudicate the dispute.”[xiii]  For example, in the event of a procedural error, the trial court could often correct or avoid the mistake so that it would not affect the ultimate outcome.  It would be inappropriate “to rule that the district court erred by not considering evidence or argument not presented to it.”[xiv]

Different Horses Are Forbidden: Recent Idaho Supreme Court Cases

“The shape of the road is the road.  There is not some other road that wears the shape but only the one.  And every voyage begun upon it will be completed.  Whether horses are found or not.”[xv]

            The Idaho Supreme Court in State v. Garcia-Rodriguez, a 2017 decision, did not consider an argument that the State raised for the first time on appeal.[xvi]  The State had argued in the district court that officers had reasonable grounds to arrest the defendant under state statute.  After losing in the district court, the State shifted its position on appeal to the argument that the arrest was constitutional based on probable cause.  The Court held that the State failed to advance that argument before the district court and the argument was not properly before the Court on appeal.  The Court also declined to adopt a “wrong result-wrong theory” approach to reverse a trial court’s decision based on issues neither raised nor argued before the trial court.  The Court declined to consider the State’s unpreserved argument, despite noting “that the State’s arguments are likely correct” under United States Supreme Court and Idaho Supreme Court precedent.[xvii]

            About a month before Garcia-Rodriguez, the Court held in Ada County Highway District v. Brooke View Inc., that if an argument is properly preserved for appeal, the argument may evolve on appeal.[xviii]  The plaintiff in Brooke View argued before the district court that the valuation of just compensation did not include damage done during construction.  On appeal, the plaintiff supplemented that argument with citations to the relevant statutes.  The Court noted that there was no question that the plaintiff clearly raised the relevant issue before the district court.

While the plaintiff’s specific arguments in support of its position may have evolved since the trial, the issues on appeal and the plaintiff’s position remained the same.

Later, the Court stated that it was “proper and necessary” for the Brooke View plaintiff to evolve its arguments.[xix] The Court noted that during the pendency of an appeal, parties will ruminate on issues and new case law may need to be applied to the specific facts of the case. However, such pragmatic evolutions would not allow parties to raise new substantive issues on appeal or adopt new positions on an issue that the trial court had not had the opportunity to address.

            In 2019, the Court in State v. Gonzalez introduced its horse metaphor to distinguish Brooke View and Garcia-Rodriguez.  As outlined previously, a groomed horse like in Brooke View is expected on appeal, but a different horse like in Garcia-Rodriguez is forbidden. [xx]

The defendant in Gonzalez had argued before the district court that she was entitled to credit for time served from the issuance of her arrest warrant.  On appeal, she argued that she was entitled to credit from the time of her hold on a warrant.  The Court held that the defendant was riding a similar, but new horse.  The change in her position on her motion for credit for time served meant that her argument was not preserved for appeal.[xxi]

In sum, “A party may refine issues that they have raised below with additional legal arguments so long as the substantive issue and the party’s position on that issue remain the same.”[xxii]  However, “A distinction exists between a refined issue, appropriate for review, and a new issue, unfit for consideration.”[xxiii]  That applies even for similar but distinct issues.  For example, in Siercke v. Siercke, the Court held that a party’s absolute privilege argument before the district court did not preserve for appeal the separate but related issue of a qualified privilege.[xxiv]

Apart from changing its position, a party will not preserve an issue for appeal if the party conceded the issue in the trial court.[xxv]  Further, while an appellate court may affirm on the basis of the “right-result, wrong-theory” explanation for appellate review, the party must first properly preserve its alternative argument for appeal.[xxvi]

Most recently, in State v. Miramontes, the Court clarified that parties may preserve an issue without an adverse ruling, if their “position on that issue was presented to the trial court with argument and authority and noticed for hearing.”[xxvii]  Put otherwise, “a party preserves an issue for appeal by properly presenting the issue with argument and authority to the trial court below and noticing it for hearing or a party preserves an issue for appeal if the trial court issues an adverse ruling.”[xxviii]

The Court in Miramontes held that the defendant preserved for appeal an argument that she was unlawfully searched even though that argument was not in her initial motion to suppress. The Court based its holding on her subsequent assertions before the district court in oral argument and a supplemental brief.  While the record was “muddled,” and the Court did not fully fault the district court for not discerning the full extent of the defendant’s arguments, the district court “simply failed to reach [the defendant’s] objections about the constitutionality of the search.”[xxix]  Because the defendant argued that the search was illegal and supported that issue with cogent argument and authority, the issue was preserved for appeal.  The Court held it would unduly penalize the defendant if she lost her appeal because her counsel failed to compel the trial judge to rule on her argument about the search.

Two Exceptions to the Issue Preservation Requirement

The Idaho Supreme Court recently reaffirmed a limited exception for issue preservation, in State v. Jeske.[xxx]  Under this exception, if the issue was argued to or decided by the district court, the issue can form the basis for review by the appellate court.  The Court recognizes a distinction between issues not formally raised before the district court, and issues that never surfaced.  The issue on appeal in Jeske was whether it was proper to present testimony on the defendant’s refusal to submit to a blood draw.  The Court held that the issue was preserved, even though the defendant’s counsel did not explicitly mention the blood draw at one point, because the district court specifically identified the blood draw in its decision.

At the same time, the Court has restricted another exception to issue preservation.   The fundamental error doctrine allows for appellate review of certain un-objected to errors in appeals from criminal cases.  This doctrine stems from the Fourteenth Amendment right to due process and the basic requirement of due process for a fair trial in a fair tribunal.[xxxi]

Review for fundamental error, as outlined by the Court in State v. Perry, involves a three-prong inquiry. The defendant bears the burden of persuading the appellate court that the alleged error: (1) violates one or more of the defendant’s unwaived constitutional rights; (2) plainly exists without the need for any additional information not contained in the appellate record, including information as to whether the failure to object was a tactical decision; and (3) was not harmless.  The fundamental error standard presents a much greater hurdle for criminal defendants than the standard for preserved errors in criminal appeals.  That standard requires that if the defendant shows that a violation occurred, the State has the burden of proving that the error was harmless.[xxxii]

But the hurdle has become even more challenging to vault in the face of the Court’s clarification of fundamental error review in 2019.  In State v. Miller, the Court held that, for the second prong of Perry, “the record must contain evidence of the error and the record must also contain evidence as to whether or not trial counsel made a tactical decision in failing to object.”[xxxiii]  Without evidence on whether counsel’s decision was strategic, the claim would be factual in nature and thus more appropriately addressed via a petition for post-conviction relief.

The Miller Court also clarified that the third prong of Perry “requires that the defendant demonstrate that the clear error in the record . . . actually affected the outcome of the trial proceedings.”[xxxiv]  The Court disapproved of language from earlier cases that required the defendant to only show a reasonable possibility that the error affected the outcome.  Instead, whether the error affected the trial proceedings must be clear from the appellate record.

After Miller, there are only two published decisions to date where Idaho’s appellate courts have found fundamental error.   One was a case where the Court applied the earlier, less onerous Perry standard, and the second was a case where the error by its nature was automatically deemed to have affected the outcome.[xxxv]  The heightened difficulty in proving fundamental error arguments further underscores the importance of issue preservation, especially in criminal appeals.

Tips for Practitioners

“A form without a history has no power to perpetuate itself.  What has no past can have no future.”[xxxvi]

Here are a few tips to keep in mind when it comes to preserving issues for appeal.  First, in the trial court, be sure to object.  As the Idaho Supreme Court recently put it in Miramontes, “That a party must object and thereby create a record of the party’s adverse contention below is axiomatic.  It is foundational for appellate review.”[xxxvii]  The Jeske exception may apply only in limited circumstances, and fundamental error is quite challenging even where it is available.  So, object!  If applicable, ensure that you notice the issue for hearing.[xxxviii]  On a special note, to preserve jury instruction issues in criminal cases, one must both submit a proposed instruction and object to the district court’s decision on the instruction during the jury instruction conference.[xxxix]

Second, make sure your position is clearly stated.  Based on the Court’s jurisprudence, how you set forth your position at trial will determine to a great extent what you may argue on appeal.  Moreover, it is best to stake out your position at the earliest opportunity, as raising an issue later may result in a “muddled” record like in Miramontes.[xl]  Still, you may refine or evolve your preserved arguments on appeal.[xli]

Third, provide argument and authority in support of your position.  The Court “has placed a premium on counsel presenting the facts and law that it chooses to support its position in the trial court.”[xlii]  The Court in Miramontes was careful to specify that its ruling “should not be seen as carte blanche to make half-baked or cursory objections to preserve an issue for appeal.”[xliii] Further, where parties object and provide a well-stated basis for their objections, trial courts are ordinarily in the best position to determine the relevant facts and resolve the disputes.

Finally, be sure to obtain an adverse ruling on your issue if possible.  The Miramontes Court emphasized that “obtaining an adverse ruling will always provide a better framework for appellate analysis.”[xliv]  The best practice while objecting is to aim to get an adverse ruling to properly preserve the issue.  The Miramontes Court noted “that attorneys who properly present their issue to the district court as described above but fail to secure such a ruling may undermine or impair their clients’ position on appeal.”[xlv]  If you follow the other tips, by objecting, clearly stating your position, and providing supporting argument and authority, it is more likely the trial court will reach your objection.


Issue preservation has been an important topic in the Idaho Supreme Court’s recent jurisprudence. Accordingly, practitioners should keep in mind these tips for properly preserving issues for appellate review.  That way, when completing your voyage on the appellate road, you will not have to worry about riding a different, forbidden horse.

Ben P. McGreevy is a former Chairperson of the Appellate Practice Section and a current Deputy State Appellate Public Defender. The author’s views and opinions in this article do not reflect those of the State Appellate Public Defender’s Office.

[i] Cormac McCarthy, All The Pretty Horses 238 (Alfred A. Knopf 1992).

[ii] State v. Gonzalez, 165 Idaho 95, 99, 439 P.3d 1267, 1271 (2019).

[iii] Id.

[iv] See State v. Perry, 150 Idaho 209, 224, 245 P.3d 961, 976 (2010).

[v] State v. Garcia-Rodriguez, 162 Idaho 271, 276, 396 P.3d 700, 705 (2017).

[vi] Gonzalez, 165 Idaho at 99, 439 P.3d at 1271.

[vii] Garcia-Rodriguez, 162 Idaho at 275, 396 P.3d at 704.

[viii] State v. Sterling, 1 Idaho 128, 131 (1867) (quoted in Garcia-Rodriguez, 162 Idaho at 276, 396 P.3d at 705).

[ix] Id.

[x] Perry, 150 Idaho at 224, 245 P.3d at 976.

[xi] Gonzalez, 165 Idaho at 100, 439 P.3d at 1272.

[xii] Perry, 150 Idaho at 224, 245 P.3d at 976 (quoting Puckett v. U.S., 556 U.S. 129, 134 (2009)) (alteration and internal quotation marks omitted).

[xiii] Id., 245 P.3d at 976.

[xiv] Gonzalez, 165 Idaho at 100, 439 P.3d at 1272.

[xv] Cormac McCarthy, The Crossing 230 (Alfred A. Knopf 1994).

[xvi] Garcia-Rodriguez, 162 Idaho at 274-76, 396 P.3d at 703-05.

[xvii] See id. at 275, 396 P.3d at 704.

[xviii] 162 Idaho 138, 142 n.2, 395 P.3d 357, 361 n.2 (2017).

[xix] Gonzalez, 165 Idaho at 98, 439 P.3d at 1270.  A party may even preserve an argument where they had an incorrect citation reference, so long as they cited the relevant language of the statute and the principles behind it before the district court.  See State v. Towner, 169 Idaho 773, 778, 503 P.3d 989, 994 (2022).

[xx] Gonzalez, 165 Idaho at 99, 439 P.3d at 1271.

[xxi] Id. at 99-100, 439 P.3d at 1271-72.

[xxii] Siercke v. Siercke, 167 Idaho 709, 715, 476 P.3d 376, 382 (2020).

[xxiii] Id. at 716, 476 P.3d at 383.

[xxiv] Id., 476 P.3d at 383.

[xxv] State v. Cohagan, 162 Idaho 717, 721, 404 P.3d 659, 663 (2017).

[xxvi] State v. Hoskins, 165 Idaho 217, 443 P.3d 231 (2019).  The “right result-wrong theory” rule or explanation for appellate review provides that, where an order of a trial court is correct, but based upon an erroneous theory, the order will be affirmed upon the correct theory.  Id. at 222, 443 P.3d at 236.   To affirm on the basis of the right result-wrong theory explanation, the correct theory “must have been properly preserved.” See id. at 226, 443 P.3d at 240.

[xxvii] — Idaho —, 517 P.3d 849, 853 (Idaho 2022); accord State v. Vivian, 171 Idaho 79, 518 P.3d 378 (2022).

[xxviii] Miramontes, 517 P.3d at 853-54 (emphasis in original).

[xxix] Id., 517 P.3d at 855.

[xxx] 164 Idaho 862, 868, 436 P.3d 683, 689 (2019).

[xxxi] See Perry, 150 Idaho at 224, 245 P.3d at 976.

[xxxii] See id. at 227-28, 245 P.3d at 979-80.

[xxxiii] 165 Idaho 115, 119, 443 P.3d 129, 133 (2019).

[xxxiv] Id. at 119-20, 443 P.3d at 133-34.

[xxxv] See State v. Medina, 165 Idaho 501, 447 P.3d 949 (2019) (holding under the Perry standard that an erroneous jury instruction constituted fundamental error); State v. Haggard, 166 Idaho 858, 465 P.3d 1097 (2020) (holding under Perry that the defendant’s ineffective waiver of his right to a jury trial was fundamental error, where possible tactical considerations of the attorney as discussed in Miller did not matter because the waiver decision was personal to the defendant, and the deficient waiver automatically satisfied the third prong as a structural defect).

[xxxvi] Cormac McCarthy, Cities of the Plain 281 (Alfred A. Knopf 1998).

[xxxvii] Miramontes, 517 P.3d at 854.

[xxxviii] See id., 517 P.3d at 853-54.

[xxxix] See I.C.R. 30(b)(4); State v. Hall, 161 Idaho 413, 422, 387 P.3d 81, 90 (2016).  There does not appear to be an equivalent requirement for jury instruction objections in civil cases.  See I.R.C.P. 51.

[xl] See Miramontes, 517 P.3d at 854-55.

[xli] E.g., Gonzalez, 165 Idaho at 98, 439 P.3d at 1270.

[xlii] Hoskins, 165 Idaho at 226, 443 P.3d at 240.

[xliii] Miramontes, 517 P.3d at 854.

[xliv] Id., 517 P.3d at 854.

[xlv] Id., 517 P.3d at 854.