specially concurring in part and dissenting in part;
I concur in part and dissent in part. Because I believe that this court should address the double jeopardy question mentioned by the majority in footnote 4, I respectfully dissent from that conclusion in the majority opinion. We granted certiora-ri on the issue, it was thoroughly addressed in the briefs submitted by the parties, and in the interest of judicial economy I believe the issue should be decided.
I.
I agree with the majority that the facts of this case, as established by a careful review of the record, reveal no evidence linking the defendant to the burglary in Adams County. Based on this lack of evidence and the defendant’s acquittal of the Adams County burglary, the theft by receiving conviction in Adams County must be reversed. However, I specially concur in order to emphasize that the holding in this case must be vary narrowly applied, *815relating only to the unusual facts presented here.
I believe that because there was a lack of evidence in the record demonstrating any type of link, even circumstantial, between the defendant and the Adams County burglary, the majority is correct in affirming the court of appeals’ reversal of the conviction. However, I would reverse the court of appeals’ dismissal of the charge, and remand to the trial court for retrial.
II.
The defendant argues that his reprosecution should be barred as violative of the double jeopardy clause, and the majority declined to address the issue because proceedings against the defendant have not yet begun. I disagree with the majority’s conclusion that this issue is not appropriate for our review, based on our prior decision in People v. Lybarger, 700 P.2d 910 (Colo. 1985). In that case, we reversed the defendant’s conviction and went on to review the record because “if the evidence is insufficient to support the conviction, the retrial of the defendant on the same charge” would violate double jeopardy. Id. at 916.
We have not previously addressed the issue of whether appellate reversal of a conviction when a defendant brings the appeal, based on improper venue, amounts to insufficient evidence establishing guilt or innocence, thus prohibiting retrial due to the double jeopardy clause. The U.S. Supreme Court has held:
Petitioner’s contention that to require him to stand trial again would be to place him twice in jeopardy is not persuasive. He sought and obtained the reversal of his conviction assigning a number of alleged errors on appeal, including denial of his motion for judgment of acquittal “[Wjhere the accused successfully seeks review of a conviction, there is no double jeopardy upon a new trial.”
Bryan v. United States, 338 U.S. 552, 560, 70 S.Ct. 317, 321, 94 L.Ed. 335 (1949) (citations omitted).
There is an important distinction between insufficiency as to factual matters that go to the establishment of guilt or innocence, and reversal on matters that do not reflect an insufficiency of “guilt or innocence” evidence. The double jeopardy clause prohibits a retrial when there has been a post-jeopardy determination that the government’s evidence is insufficient to establish guilt. Burks v. United States, 437 U.S. 1, 16, 98 S.Ct. 2141, 2150, 57 L.Ed.2d 1. A retrial is not necessarily prohibited where reversal is based on a “determination that a defendant has been convicted through a judicial process which is defective in some fundamental respect.” Id. at 15, 98 S.Ct. at 2149. In Lybarger, we applied the principle that retrial of the defendant for the same charge [which the appellate court had reversed] would constitute a violation of double jeopardy if “the evidence is insufficient to support the conviction.” 700 P.2d 910 at 916 (Colo.1985). In reviewing the record for sufficiency of evidence, “we must consider all the evidence, including that presented by the defendant, and evaluate this evidence in a light most favorable to the People and then determine whether, when so considered, the evidence is of sufficient quality and quantity to support a conclusion by a reasonable person that the defendant’s guilt has been established beyond a reasonable doubt.” Id. at 916-17.
This court has adopted the reasoning of Burks v. United States, noting that double jeopardy protection applies when a conviction is reversed “due to evidentiary insufficiency in a former prosecution.” People v. Brassfield, 652 P.2d 588, 594 n. 5 (Colo.1982) (emphasis in original) (where appellate court reverses judgment of acquittal entered by trial judge after jury found the defendant guilty, case is remanded for ruling upon defendant’s pending motion for new trial; result of that ruling will be either entry of judgment of conviction, or retrial if new trial motion is granted.)
The Eleventh Circuit Court of Appeals recently held that “reversal because of improper venue is not the same as reversal for insufficient evidence to support a conviction” and concluded that retrial is permitted where a criminal conviction was reversed because of improper venue. Haney v. Burgess, 799 F.2d 661, 662 (11th Cir.*8161986). The court in Haney held that, under Burks, proof of venue was “a question of procedure, more than anything else, and it does not either prove or disprove the guilt of the accused.” Id. at 663. Accordingly, retrial after reversal because of improper venue was found not to violate the double jeopardy clause.
The Virginia Supreme Court also addressed this factual situation in Pollard v. Commonwealth, 220 Va. 723, 261 S.E.2d 328 (1980). In Pollard, the defendant’s conviction for larceny was reversed because the prosecution failed to prove venue. In reversing, the Virginia Supreme Court refused to dismiss the indictment because the error did not stem from eviden-tiary insufficiency going to the guilt or innocence of the defendant.
I believe that the appropriate distinction is whether a conviction is reversed solely for lack of sufficient evidence to sustain the jury's verdict. If this is the sole reason for reversal, then the government has failed to prove its case and the defendant is entitled to the protection of the double jeopardy clause. If, however, the reversal is not based on an evidentiary insufficiency going solely to guilt or innocence, I believe that retrial is not violative of the double jeopardy clause. The jury here found the defendant guilty of theft by receiving, and a primary purpose of the double jeopardy clause is “to prevent a successive trial on the issue of guilt or innocence after this ultimate factual issue has previously been determined in the defendant’s favor at a former prosecution.” Brassfield, 652 P.2d at 594 (emphasis added).
Double jeopardy bars retrial as to the verdict of not guilty on the burglary charge; the defendant cannot be retried for that offense. As to the theft by receiving conviction, reversal is based on the fact that venue as to theft by receiving was not shown in Adams County. The record does show evidence “of sufficient quality and quantity to support a conclusion by a reasonable person that the defendant’s guilt has been established beyond a reasonable doubt.” Lybarger, 700 P.2d at 916-17. I believe the necessary conclusion is that retrial here would not violate the defendant’s double jeopardy protections. I would remand for retrial, and therefore respectfully dissent from the majority’s conclusion as to this issue.