One of the most frustrating parts of appellate advocacy occurs not just when the appellate court reject's one's arguments on appeal, but rather when the appellate court appears to go out of its way to suggest that the problem with the argument is that it was framed improperly. Instead of simply rejecting the argument, the appellate court will offer some gratuitous aside about how another question--undoubtedly one not specifically raised in the appeal, or so the appellate court says--might result in a different resolution. It's essentially a double dose of harsh reality, as if the court were saying that (1) the argument you did in fact make was no good, and (2) if you had made this other argument, you might have won. Implicit in the second observation is that you were likely ineffective for not raising that other argument. Of course, as most appellate practitioners know, if you did in fact make the argument suggested by the appellate court, the opinion would probably say the error was harmless, unpreserved, and/or insufficiently briefed.
All rambling aside, a good example of the gratuitous appellate comment can be found in the recent decision of the Utah Court of Appeals in State v. Tibbets. After rejecting the defendant's arguments about the improper admission of 404(b) evidence, the court casually observes:
Throughout Defendant's analysis of rule 404(b), she claims, without legal support, that rule 404(b) evidence must be "direct evidence" and cannot be an unsubstantiated allegation. While this raises the interesting issue of what quantum of proof must be presented for evidence to be admitted as rule 404(b) evidence, Defendant has failed to convince us that more was required in this case.
In other words, the Court of Appeals acknowledges that the defendant has raised an "interesting" issue regarding 404(b) evidence, but rather than actually establish a rubric for determining the quantum of proof necessary for future cases, the court simply says that the defendant has not convinced the court that any error occurred. So, I suppose, the defendant must meet a particular threshold showing, though just how much is necessary to meet that threshold is left undetermined. Defense attorneys are thus left guessing what standard, if any, is imposed in Tibbets, and they are also left wondering whether subsequent challenges to the "interesting" question of what quantum of proof is necessary to admit 404(b) evidence will be summarily rejected in a similar fashion. Out of an abundance of caution, however, it may behoove practitioners to address the "interesting" question alluded to by the Court of Appeals. The chances of success aren't great, but at least the court won't claim that you failed to raise the argument.