concurring in part and dissenting in part, in which GOLDEN, Justice, joins.
[¶39] I join in Justice Golden's opinion concurring in part and dissenting in part. I write separately with a few additional comments.
[¶40] First, I agree with Justice Golden that trial counsel was not ineffective for failing to file a motion for new trial. There are two salient facts that should be the focus of this inquiry: First, as noted in the majority opinion, defense counsel's motion for judgment of acquittal was denied because the district court believed there was sufficient evidence from which a reasonable jury could find the appellant guilty beyond a reasonable doubt. Second, the majority, in its own analysis of the State's evidence, determines as follows:
[Wle conclude the jury reasonably could have concluded that Mr. Ken was angry, retrieved the gun and purposely aimed it at Mr. Menard. The jury also could reasonably have concluded that Mr. Ken fired the gun at Mr. Menard twice with the intent of killing him but, in the excitement of the moment, missed his target and hit the apartments off to the right of Mr. Menard.
See supra 122. Thus, the district court denied a motion for judgment of acquittal on the ground that the evidence was sufficient *578to convict. This Court also believes the evidence was sufficient to convict. Yet, this Court finds trial counsel's performance deficient for not filing a motion for new trial on the ground that the "weight" of the evidence was not sufficient to convict. That is simply not reasonable. Furthermore, use of the district court's later comment that he would have granted the motion, as evidence of prejudice, is, as mentioned by Justice Golden, nothing but the use of hindsight. Defense counsel did not have the benefit of that hindsight.
[T41] My additional concern here is the effect of W.R.Cr.P. 29 and 33 when the issue is sufficiency of the evidence. W.R.Cr.P. 29 governs motions for judgment of acquittal, which motions should be granted "if the evidence is insufficient to sustain a conviction...." W.R.Cr.P. 29(a). It is significant, in light of the procedural history of the instant case, that the district court "of its own motion shall order the entry of judgment of acquittal" where the evidence is insufficient to convict. Id. The test to be applied, as we have said innumerable times, is whether, looking only at the State's evidence, the district court can say that a rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. See, e.g., Lemus v. State, 2007 WY 111, ¶ 47, 162 P.3d 497, 509 (Wyo.2007); Mendoza v. State, 2007 WY 26, ¶ 3, 151 P.3d 1112, 1113 (Wyo.2007); and Burkhardt v. State, 2005 WY 96, ¶ 9, 117 P.3d 1219, 1222-23 (Wyo.2005). Most importantly, where "the State introduces evidence on its case-in-chief from which the jury may properly infer the essential elements of the crime, the State has then made out a 'prima facie case, impregnable against a motion for acquittal." Russell v. State, 583 P.2d 690, 695 (Wyo.1978).
[¶42] Defense counsel moved for a judgment of acquittal at the end of the State's case. The district court denied the motion because the district court found that the evidence, when viewed in the light most favorable to the State, was sufficient to support an inference of the intent necessary to support an attempted first-degree murder conviction. Trial counsel did not timely move post-trial for a judgment of acquittal under W.R.Cr.P. 29. Furthermore, the district court stated upon remand that it would not have granted a motion for judgment of acquittal, so the district court must have continued to believe that there was sufficient evidence for a reasonable jury to find guilt. If that was not the district court's belief, the district court should have entered a judgment of acquittal upon its own motion.
[¥43] The significant difficulty in this scenario is that W.R.Cr.P. 38, if interpreted as the majority interprets it, allows a new trial to be granted "in the interest of justice," when the trial court judge disagrees with the "weight" given the evidence by the jury. Allowing the district court to reverse a Jury verdict because the court disagrees with the weight of the evidence, where the court has already determined the evidence is sufficient to convict, violates the principle that jurors are the final arbiters of what weight to give to the evidence. We have said, probably dozens of times, that courts are not to see-ond-guess the jury and that courts are not to reweigh the evidence. See, e.g., Lemus, 2007 WY 111, ¶ 47, 162 P.3d at 509; Mendoza, 2007 WY 26, ¶ 3, 151 P.3d at 1113; Burkhardt, 2005 WY 96, ¶ 9, 117 P.3d at 1223; Leyo v. State, 2005 WY 92, ¶ 16, 116 P.3d 1113, 1118 (Wyo.2005); Harlow v. State, 2005 WY 12, ¶ 41, 105 P.3d 1049, 1068 (Wyo.2005); Mascarenas v. State, 2003 WY 124, ¶ 3, 76 P.3d 1258, 1260 (Wyo.2003), Johnson v. State, 930 P.2d 358, 366 (Wyo.1996); Trujillo v. State, 880 P.2d 575, 578-79 (Wyo.1994); and Mondello v. State, 843 P.2d 1152, 1161 (Wyo.1992). In addition, we instruct the jury repeatedly that "it is the exclusive province of the Jury to weigh and consider all evidence...." Wyo. Criminal Pattern Jury Instructions 1.01, 1.02 (2004); see also Wyo. Criminal Pattern Jury Instruction 6.01 (2004). Apparently, that is not true; the weight to be given the evidence is not the exclusive province of the jury. Rather, even where the trial court has determined the evidence sufficient to convict, the trial court may reverse the jury's determination of guilt by reweighing the evidence. That is not right.
[¶44] The doctrine of stare decisis does not require Wyoming to follow those cases that allow the filing under F.R.Cr.P. 33 of a *579motion that merely contests the weight given to the evidence by the jury. As noted above, the evidence is sufficient to support a guilty verdict if the evidence is sufficient for a quorum of reasonable jurors to have found guilt beyond a reasonable doubt, based upon that evidence. See, e.g., Schuler v. State, 2008 WY 47, ¶ 11, 181 P.3d 929, 932 (Wyo.2008). If the evidence passes that test, it eannot also "preponderate heavily against the verdict" and, therefore, require reversal. See United States v. Martinez, 763 F.2d 1297, 1312-13 (11th Cir.1985). Similarly, if the evidence "contradicts indisputable physical facts or law," I fail to see how it is sufficient evidence upon which a jury could reasonably find guilt beyond a reasonable doubt. See United States v. Kuzniar, 881 F.2d 466, 470-71 (7th Cir.1989).
[¶45] We ought to make sense, not nonsense, of the law. W.R.Cr.P. 38(a) uses the phrase "in the interest of justice", but that phrase should not give the trial judge license to reweigh the evidence.6 If the evidence was not sufficient for the jury to find guilt beyond a reasonable doubt, the district court should have entered a judgment of acquittal, upon its own motion if necessary. If the evidence was sufficient for the jury to find guilt beyond a reasonable doubt, then the district court has no business reversing that verdict and ordering a new trial based upon its own reweighing of the evidence. I would hold that a new trial motion under W.R.Cr.P. 33 cannot be based upon sufficiency of the evidence, or the weight given to evidence that has been found sufficient.
[T 46] I am curious as to what will happen in the new trial in the instant case if the State produces exactly the same evidence that it produced in the first trial. Inasmuch as that evidence has been determined to be sufficient for the case to be submitted to the jury, and therefore "impregnable" against a motion for judgment of acquittal, the district court must submit the case to the jury. If the jury again convicts, is the district court free onee again to reweigh that evidence and grant yet another new trial?
[¶47] One additional point I am concerned that the majority's discussion of the State's inability directly to appeal in a criminal case will now be indelibly inserted into the concept of ineffective assistance of counsel. Apparently, because the State cannot appeal to challenge the granting of a new trial motion, counsel will always be inceffee-tive if he or she does not appeal from such a denial, or from the denial of any other motion which the State cannot appeal. Conversely, if the State could directly appeal the granting of a new trial, would that mean defense counsel was not ineffective for failing to file such motion? I agree with Justice Golden that this entire discussion should be omitted from the majority opinion.
. Beyond that, because we do not know what weight the jury assigned to any particular piece of evidence, we do not even know if the trial court judge is "weighing" any particular piece of evidence differently than did the jury. What is really happening is that the trial court judge is saying that, in looking at all the evidence, he or she does not agree with the jury's verdict. Stated differently, what the trial court judge is saying is that "this evidence was sufficient for you to convict, but you should not have convicted."