If the trial court grants a new trial based on the weight of the evidence, the new trial can proceed without being barred by double jeopardy. Tibbs v. Florida, 457 U.S. 31, 42 47, 102 S. Ct. 2211, 2218 2221, 72 L.Ed.2d 652 (1982); State v. Korman, 439 So.2d 1099, 1101 (La.App. 1st Cir. 1983). Moreover, the granting of a new trial under LSA-C.Cr.P. article 851 (1) is not subject to review by the appellate court.
Insufficient evidence cannot be the basis for a new trial. State v. Korman, 439 So.2d 1099 (La.App. 1st Cir. 1983). If the evidence supporting a conviction is insufficient, the defendant is entitled to a post verdict judgment of acquittal.
When reviewing the sufficiency of evidence, it must be determined whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. LSA-C.Cr.P. art. 821; State v. Korman, 439 So.2d 1099 (La.App. 1st Cir. 1983). However, where there is conflicting testimony about factual matters, the resolution of which depends on a determination of the credibility of the witness, this is a matter of the weight of the evidence, not of sufficiency.
When reviewing the sufficiency of evidence, it must be determined whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. La.C.Cr.P. art. 821; State v. Korman, 439 So.2d 1099 (La.App. 1st Cir. 1983). Where there is conflicting testimony as to factual matters the resolution of which depends on a determination of the credibility of the witnesses, this is a matter of the weight of the evidence, not its sufficiency.
Article 858 is also applicable to the courts of appeal. See La. Const. Art. V, § 10 (A); State v. Korman , 439 So.2d 1099, 1100 (La. App. 1 Cir. 1983). Article 858 is also applicable to the courts of appeal.
The proper method for raising the sufficiency of the evidence is by motion for post-verdict judgment of acquittal. La.C.Cr.P. art. 821; State v. Korman, 439 So.2d 1099 (La.App. 1st Cir. 1983). Defendant failed to file such a motion.
We note that, in order to challenge a conviction on the basis of insufficiency of the evidence, the defendant should have proceeded by way of a motion for post-verdict judgment of acquittal. See LSA-C.Cr.P. art. 821; State v. Korman, 439 So.2d 1099 (La.App. 1st Cir. 1983). Nevertheless, we will consider a claim of insufficiency of the evidence which has been briefed pursuant to a formal assignment of error.
The trial court can grant a new trial only if it is dissatisfied with the weight of the evidence; and, in so determining, that court makes a factual review as a thirteenth juror rather than under the sufficiency standard. State v. Korman, 439 So.2d 1099, 1101 (La.App. 1st Cir. 1983). The trial court's determination of whether to grant or deny a motion for new trial on this basis in not subject to review by the appellate courts.
This standard for the appellate review of facts in criminal cases has been made statutory. La.C.Cr.P. art. 821; State v. Captville, 448 So.2d 676 (La. 1984); State v. Korman, 439 So.2d 1099 (La.App. 1st Cir. 1983). The verdict indicates that after considering the credibility of the witnesses and weighing the evidence, the jury accepted the testimony of the victim and rejected the testimony of the defendant.
Insufficient evidence cannot be the basis for a new trial. State v. Korman, 439 So.2d 1099 (La.App. 1st Cir. 1983). If the evidence supporting a conviction is insufficient, the defendant is entitled to a post verdict judgment of acquittal.