“Where constitutional grounds are asserted for the first time on appeal, they are not properly before the appellate court for review, and the exceptions to that rule do not apply in this case. See State v. Mason, 268 Kan. 37, 39, 986 P.2d 387 (1999). Under the circumstances, we conclude the waiver of the jury trial issue is not properly before us, nor was it properly before the Court of Appeals.
Graham also asserts that officers illegally impounded his car, rendering inadmissible any evidence found from the search. Graham advances the impoundment argument for the first time on appeal. Thus, the issue is not properly before us. See State v. Mason, 268 Kan. 37, 39, 986 P.2d 387 (1999). We find no error in the district court's denial of Graham's motion to suppress.
The court in Luna stated: "Where constitutional grounds are asserted for the first time on appeal, they are not properly before the appellate court for review, and the exceptions to that rule do not apply in this case. See State v. Mason, 268 Kan. 37, 39, 986 P.2d 387 (1999)." 271 Kan. at 577.
Generally, where constitutional grounds are asserted for the first time on appeal, they are not properly before the appellate court for review. State v. Mason, 268 Kan. 37, 39, 986 P.2d 387 (1999). We may consider such issues in exceptional circumstances where the asserted error involves a strictly legal question that will be determinative of the case or where consideration of the new issue is necessary to serve the interests of justice or to prevent a denial of fundamental rights.
In reaching this conclusion, it applied a standard of review nearly identical to the one required under Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See State v. Requena, 30 Kan.App.2d 200, 41 P.3d 862, 865 (2001) (citing State v. Mason, 268 Kan. 37, 986 P.2d 387 (1999)). Because the court reasonably applied the correct standard to the facts of the case, see 28 U.S.C. § 2254, we conclude Requena is not entitled to a COA on this ground.
Spears, 343 F.3d at 1238. As the district court found, the Kansas Court of Appeals applied the Jackson standard as identified and described in State v. Mason, 268 Kan. 37, 986 P.2d 387, 389 (1999). Thus, Mr. Jones must show that the Kansas Court of Appeals unreasonably applied the standard.
Spears v. Mullin, 343 F.3d 1215, 1238 (10th Cir. 2003) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Although the KCA did not specifically cite to Jackson, it identified and applied the appropriate standard from Jackson as identified and described in State v. Mason, 268 Kan. 37, 986 P.2d 387, 389 (1999). Thus, the court is limited to determining whether the KCA's adjudication of Mr. Requena's claim was an unreasonable application of Jackson. Bell v. Cone, 535 U.S. 697, 698 (2002).
Id. Accordingly, under AEDPA the court is limited to determining whether the Kansas Court of Appeals reasonably applied the Jackson standard in this case.Id. Under Kansas law, in order to convict petitioner of rape pursuant to K.S.A. 21-3502(a)(1)(A), the government must have proved that petitioner had intercourse with the victim, without her consent, when she was overcome by force or fear. Although the Kansas Court of Appeals did not cite Jackson, it nevertheless identified and applied the Jackson standard, as described inState v. Mason, 268 Kan. 37, 39, 986 P.2d 387 (1999). Jones I at 4. Petitioner concedes as much. (Doc. 2 at 7.)
Generally, where constitutional grounds are asserted for the first time on appeal, they are not properly before this court for review. State v. Mason, 268 Kan. 37, 39, 986 P.2d 387 (1999). We address it now, however, under an exception set forth in State v. Mincey, 265 Kan. 257, 267, 963 P.2d 403 (1998), specifically, that the newly asserted theory involves only a question of law arising on proven or admitted facts and is finally determinative of the case.
When the sufficiency of evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Mason, 268 Kan. 37, 39, 986 P.2d 387 (1999). The trial testimony of defendant and C.G. would not support any of the convictions.