Opinion of the Court by
Special Justice MOORE.The Commonwealth appeals from a Kentucky Court of Appeals’ decision reversing Gary Davidson’s conviction for assault in the second degree and subsequently barring a retrial for the same offense under the Double Jeopardy Clause. Upon review of the record, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
On the night of March 26, 2003, Crystal Williams was involved in a physical altercation with her former boyfriend, Gary Davidson, and his girlfriend at the time, Tracey Rogers. Williams allegedly traveled to Davidson’s trailer home to collect some of her belongings and confront Davidson about why he left her for Rogers. The situation quickly escalated when, according to Davidson, Williams began fighting him as soon as he opened the door to his home.
Davidson testified that he tried to get Williams into the yard because she was out of control. After about fifteen minutes of fighting, Davidson and Rogers tied up Williams and placed duct tape over her mouth to keep her from yelling and biting. In support of his actions, Davidson claimed that he had no other option and was trying to prevent Williams from hurting them and herself.
The Commonwealth provided a much different description of the incident at trial. The Commonwealth put on proof that Davidson opened the trailer door and kicked Williams down the stairs. Williams then got up and walked into the yard. At this point, Davidson allegedly retrieved a rifle from his trailer and fired at Williams, who fell to her knees believing she had been shot after feeling something strike her chest. Davidson then apparently picked up Williams and carried her to a dog box in his front yard. He repeatedly attempted to stuff her into the dog box. Unsuccessful at that, Davidson continued to strike and choke Williams, place his knee on her chest, and duct taped her head, face, mouth and nose. At one point, Rogers kicked Williams in the legs and ribs as Davidson held her down. Finally, Davidson wrapped his belt around Williams’s neck and dragged her into his trailer.
After receiving a tip from a passerby who heard the confrontation, two police officers arrived at Davidson’s trailer and immediately arrested Davidson and Rogers. One officer testified that Williams was found on the kitchen floor bound at the ankles and feet with duct tape, had duct tape around her mouth and the lower part of her nose, and had blood coming from her face. After removing the duct tape from Williams’s mouth and nose, the officer stated that Williams was having difficulty breathing and was beaten and unresponsive. Williams spent the following 36 hours in the hospital and was released after tests indicated she suffered no broken bones and her injuries did not require surgery.1
Davidson was found guilty of unlawful imprisonment in the first degree and as*234sault in the second degree, but the jury found him not guilty of wanton endangerment. He was sentenced to one year in prison for the unlawful imprisonment charge and five years’ imprisonment for the assault charge, with sentences to run consecutively for six years.
The Court of Appeals affirmed the unlawful imprisonment conviction but reversed Davidson’s conviction for second-degree assault, holding the trial court committed palpable error when it instructed the jury on second-degree assault based on the theory that Davidson’s fists were dangerous instruments. Moreover, the Court of Appeals ruled the Commonwealth was barred by double jeopardy from retrying Davidson for second-degree assault. We granted the Commonwealth’s Motion for Discretionary Review, wherein the Commonwealth moves this Court to reconsider whether retrying Davidson for second-degree assault is barred by the Double Jeopardy Clause.
II. ANALYSIS
Pursuant to Kentucky Revised Statute (KRS) 508.020(1), a person is guilty of assault in the second degree when
(a) He intentionally causes serious physical injury to another person; or
(b) He intentionally causes physical injury to another person by means of a deadly weapon or a dangerous instrument; or
(c) He wantonly causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument.
Under KRS 500.080(3), “dangerous instrument”
means any instrument, including parts of the human body when a serious physical injury is a direct result of the use of that part of the human body, article, or substance which, under the circumstances in which it is used, attempted to be used, or threatened to be used, is readily capable of causing death or serious physical injury.
Based on the plain meaning of KRS 500.080(3), we agree with the Court of Appeals’ statutory interpretation that when the dangerous instrument in question is a part of the human body, the Commonwealth bears the burden of establishing that serious physical injury actually occurred as a direct result of the use of that part of the human body.2 Because there was insufficient evidence to support a finding that Davidson’s fists caused serious physical injury to Williams, the Court of Appeals held the trial court erred by instructing the jury on second-degree assault based on the theory that Davidson’s fists were dangerous instruments.3 Nevertheless, the Commonwealth insists the Court of Appeals improperly ruled that retrying Davidson on second-degree assault was barred by double jeopardy.
It is well established the Fifth Amendment of the United States Constitution and Section 13 of the Kentucky Constitution provide that no person shall “be *235subject for the same offense to be twice put in jeopardy.” Lockhart v. Nelson, 488 U.S. 33, 38, 109 S.Ct. 285, 289,102 L.Ed.2d 265 (1988); Radford v. Lovelace, 212 S.W.3d 72, 79 (Ky.2006). However, as held in Burks v. United States, 437 U.S. 1, 15, 98 S.Ct. 2141, 2150, 57 L.Ed.2d 1 (1978), a double jeopardy analysis requires a determination of whether the reversal of a conviction was due to trial error or insufficiency of the evidence. See also Commonwealth v. Mattingly, 722 S.W.2d 288 (Ky.1986).
Reversal based on insufficiency of the evidence “means that the government’s case was so lacking that it should not have even been submitted to the jury.” Burks, 437 U.S. at 16, 98 S.Ct. at 2150. Moreover, the “Double Jeopardy Clause precludes a second trial once the reviewing court has found the evidence legally insufficient.” Id, at 18, 98 S.Ct. at 2150-51, whereas, double jeopardy does not bar a retrial on the same offense when reversal is due to trial error because it does not imply the government has failed to prove its case. Id. at 15, 98 S.Ct. at 2149. Instead, trial error “is a determination that a defendant has been convicted through a judicial process which is defective in some fundamental respect, e.g., incorrect receipt or rejection of evidence, incorrect instructions, or prosecutorial misconduct.” Id.
The Commonwealth contends retrial is not barred by double jeopardy pursuant to Kentucky Rule of Criminal Procedure (RCr) 9.54(1) because the trial court’s failure to properly instruct the jury on the second-degree assault charge constitutes trial error.4 Yet, a thorough review of the Court of Appeals’ rationale suggests otherwise, and the Commonwealth’s attempt to label the reversal as trial error is misguided.
While it is true the trial court committed palpable error by instructing the jury on second-degree assault based on the theory that Davidson’s fists were dangerous instruments, reversal of Davidson’s conviction was ultimately based on the lack of evidence to support a finding that Williams suffered serious physical injury from Davidson’s fists. Therefore, Davidson’s conviction for second-degree assault was reversed due to insufficiency of the evidence, which is the equivalent of an acquittal for double jeopardy purposes.5 Accordingly, we affirm the Court of Appeals’ ruling that the Commonwealth is barred by double jeopardy from retrying Davidson on the charge of assault in the second degree.6
NOBLE, VENTERS, CUNNINGHAM, and ABRAMSON, JJ., and Special Justice R. MICHAEL SULLIVAN, concur. SCOTT, J. concurs in part and dissents in part by separate opinion. MINTON, C.J., and SCHRODER, J., not sitting.. At the hospital, Williams was treated for multiple traumas and doctors found severe bruising to her face and body. In addition, a drug screen revealed the presence of Xanax, *234cocaine, methamphetamine, marijuana and other benzodiazepines (tranquilizers) in Williams's system.
. " ‘Serious physical injury' means physical injury which creates a substantial risk of death, or which causes serious and prolonged disfigurement, prolonged impairment of health, or prolonged loss or impairment of the function of any bodily organ.” KRS 500.080(15).
. Although we find Davidson’s conduct extremely offensive and deplorable, the Court of Appeals correctly determined the injuries Williams suffered from Davidson’s fists did not amount to serious physical injury under KRS 500.080(15).
. "It shall be the duty of the trial court to instruct the jury in writing on the law of the case.” RCr 9.54(1); see also Fugate v. Commonwealth, 445 S.W.2d 675, 682 (Ky.1969).
. The Commonwealth raises additional arguments regarding improper jury instructions by the trial court. However, these issues were not preserved for appeal and are not properly before this Court.
.As the Court of Appeals properly stated, the Commonwealth is not barred from retrying Davidson for the lesser charge of assault in the fourth degree.