OPINION
RIORDAN, Justice.
This is the second appeal by the State in this case from the trial court’s sua sponte grant of a new trial after a jury found Defendant John Paul Chavez (Chavez) guilty of two counts of first degree murder, of aggravated battery with a firearm, and of unlawful taking of a firearm into a licensed liquor establishment. We granted certiorari and reverse.
The issues we address are:
I. Whether the Court of Appeals erred in holding that pursuant to NMSA 1978, Crim.P.Rule 45 (Repl.Pamp.1980), the trial court may weigh the evidence and the credibility of the witnesses in determining whether to grant a new trial.
II. Whether the trial court erred in granting a new trial on the presumption that the first degree murder instructions were confusing to the jury when those instructions have been approved by the New Mexico Supreme Court.
In the first appeal, the Court of Appeals affirmed the trial court’s granting of a motion for a new trial. We granted certiorari and reversed the Court of Appeals remanding the case to the trial court with instructions that the trial court enter an order fully setting forth the grounds for the trial court’s sua sponte motion for a new trial. State v. Chavez, 98 N.M. 682, 652 P.2d 232, (1982) (Chavez I).
On remand, the trial court entered an order that provided in pertinent part the following grounds for granting a new trial:
1. The overwhelming weight of the evidence as discussed in paragraph 4 was against a conviction for first degree murder and, therefore, in the interest of justice a new trial was ordered.
2. The Court’s instructions were confusing to the jury. Instruction No. 2 and Instruction No. 6 set forth the State’s theories of first degree murder for Benny Ramirez and Romulo Ortega. The Court instructed on willful, deliberate, premeditated murder and murder based upon acts greatly dangerous to the lives of others, indicating a depraved mind. There was no direction in either instruction that the jury had to reach a unanimous verdict on only one theory of first degree murder.
Instruction No. 10 made an attempt to rectify this confusion but it made no specific reference to the specific element Instructions No. 2 and 6. Also, Instruction No. 10 did not prevent the jury from finding different theories of guilt as to each decedent since the jury was not instructed that the theory of guilt must be consistent for both decedents. For example, the jury could find defendant guilty of premeditated, deliberate first degree murder with regard to decedent Rodriguez and ‘depraved mind’ first degree murder for decedent Ortega. The evidence did not allow for differing theories of guilt for each decedent.
The confusion was compounded by Instructions No. 2 and No. 6 since there is no definition of ‘depraved mind’ making the distinction between the' alternative theories difficult if not impossible to determine.
3. The jury was confused as shown by the fact that they returned an affirmative response to a firearm interrogatory after finding the defendant guilty of two counts of first degree murder and being told in Instruction No. 25 that such an interrogatory applied only to murder in the second degree or voluntary manslaughter.
4. Conflicts between various versions of the incident caused the Court considerable concern. Three witnesses for the State, who were patrons of the bar at which the shooting occurred, denied any altercations with the defendant prior to the shooting. The defense called the manager of the bar as part of its case. The manager witnessed three separate altercations between Hector Rodriquez, one of the State’s witnesses, and the defendant. The defense also called the bartender. The bartender witnessed an additional, separate altercation immediately before the shooting as the defendant left the bar. One of the State’s witnesses denied even seeing the defendant in the bar and Mr. Rodriquez stated he neither witnessed nor participated in any fights. The evidence in the case, including expert testimony of stippling on the decedent’s body, established elements of provocation and self-defense. Evidence also established that the decedents were not strangers to the defendant. The depraved mind theory of first degree murder requires an element of anonymity between the defendant and the decedents. The depraved mind theory of first degree murder was not supported by the evidence. Since the Court cannot say that the jury did not find the defendant guilty upon a theory of depraved mind murder, a new trial is warranted.
5. Count III, aggravated battery with a firearm enhancement, occurred at the same time and place as the incidents involved in Counts I and II and therefore, in the interest of justice, this Court should also be retried with Counts I and II. (emphasis added.)
Thereafter, the State again appealed to the Court of 'Appeals raising five specific issues: 1) whether the trial court erred in granting a new trial based on its speculation that the jury may not have been unanimous in its theory of first degree murder; 2) whether the trial court erred in concluding as a matter of law that anonymity is an element of the depraved mind theory of first degree murder; 3) whether the trial court erred in ordering a new trial because the jury signed the firearm interrogatory despite the instruction to make a firearm determination only if they found Chavez guilty of second degree murder or voluntary manslaughter; 4) whether the trial court erred in ordering a new trial on Count III solely because Count III occurred at the same time and place as Counts I and II; and 5) whether the trial court erred in ordering a new trial on the basis of conflicting evidence.
I. Rule 45
The Court of Appeals determined that the trial court did not abuse its discretion in granting a new trial, and remanded the case for a new trial. The Court of Appeals held that, “under Rule 45, which allows a trial court to grant a new trial ‘if required in the interest of justice,’ a trial court may grant a new trial when it has a strong conviction that the jury has erred”, and that “[i]n determining whether to grant a new trial the court may weigh the evidence and the credibility of witnesses.”
In Chavez I, we recognized that a trial court has broad discretion in granting or denying a motion for new trial, and that such will not be reversed absent a clear and manifest abuse of that discretion. The Court of Appeals’ decision, however, would allow the trial judge to sit in judgment of a criminal case as the proverbial thirteenth juror. Pursuant to the Court of Appeals’ decision, the trial judge, after a jury verdict of guilty, could reweigh the evidence and the credibility of the witnesses, and because of considerable concern, overturn the verdict and award a new trial in the interest of justice. We reject this proposition and specifically agree with the Washington Supreme Court in State v. Williams, 96 Wash.2d 215, 221-222, 634 P.2d 868, 872-873 (1981) (citations omitted) (quoting in part Rettinger v.
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OPINION
RIORDAN, Justice.
This is the second appeal by the State in this case from the trial court’s sua sponte grant of a new trial after a jury found Defendant John Paul Chavez (Chavez) guilty of two counts of first degree murder, of aggravated battery with a firearm, and of unlawful taking of a firearm into a licensed liquor establishment. We granted certiorari and reverse.
The issues we address are:
I. Whether the Court of Appeals erred in holding that pursuant to NMSA 1978, Crim.P.Rule 45 (Repl.Pamp.1980), the trial court may weigh the evidence and the credibility of the witnesses in determining whether to grant a new trial.
II. Whether the trial court erred in granting a new trial on the presumption that the first degree murder instructions were confusing to the jury when those instructions have been approved by the New Mexico Supreme Court.
In the first appeal, the Court of Appeals affirmed the trial court’s granting of a motion for a new trial. We granted certiorari and reversed the Court of Appeals remanding the case to the trial court with instructions that the trial court enter an order fully setting forth the grounds for the trial court’s sua sponte motion for a new trial. State v. Chavez, 98 N.M. 682, 652 P.2d 232, (1982) (Chavez I).
On remand, the trial court entered an order that provided in pertinent part the following grounds for granting a new trial:
1. The overwhelming weight of the evidence as discussed in paragraph 4 was against a conviction for first degree murder and, therefore, in the interest of justice a new trial was ordered.
2. The Court’s instructions were confusing to the jury. Instruction No. 2 and Instruction No. 6 set forth the State’s theories of first degree murder for Benny Ramirez and Romulo Ortega. The Court instructed on willful, deliberate, premeditated murder and murder based upon acts greatly dangerous to the lives of others, indicating a depraved mind. There was no direction in either instruction that the jury had to reach a unanimous verdict on only one theory of first degree murder.
Instruction No. 10 made an attempt to rectify this confusion but it made no specific reference to the specific element Instructions No. 2 and 6. Also, Instruction No. 10 did not prevent the jury from finding different theories of guilt as to each decedent since the jury was not instructed that the theory of guilt must be consistent for both decedents. For example, the jury could find defendant guilty of premeditated, deliberate first degree murder with regard to decedent Rodriguez and ‘depraved mind’ first degree murder for decedent Ortega. The evidence did not allow for differing theories of guilt for each decedent.
The confusion was compounded by Instructions No. 2 and No. 6 since there is no definition of ‘depraved mind’ making the distinction between the' alternative theories difficult if not impossible to determine.
3. The jury was confused as shown by the fact that they returned an affirmative response to a firearm interrogatory after finding the defendant guilty of two counts of first degree murder and being told in Instruction No. 25 that such an interrogatory applied only to murder in the second degree or voluntary manslaughter.
4. Conflicts between various versions of the incident caused the Court considerable concern. Three witnesses for the State, who were patrons of the bar at which the shooting occurred, denied any altercations with the defendant prior to the shooting. The defense called the manager of the bar as part of its case. The manager witnessed three separate altercations between Hector Rodriquez, one of the State’s witnesses, and the defendant. The defense also called the bartender. The bartender witnessed an additional, separate altercation immediately before the shooting as the defendant left the bar. One of the State’s witnesses denied even seeing the defendant in the bar and Mr. Rodriquez stated he neither witnessed nor participated in any fights. The evidence in the case, including expert testimony of stippling on the decedent’s body, established elements of provocation and self-defense. Evidence also established that the decedents were not strangers to the defendant. The depraved mind theory of first degree murder requires an element of anonymity between the defendant and the decedents. The depraved mind theory of first degree murder was not supported by the evidence. Since the Court cannot say that the jury did not find the defendant guilty upon a theory of depraved mind murder, a new trial is warranted.
5. Count III, aggravated battery with a firearm enhancement, occurred at the same time and place as the incidents involved in Counts I and II and therefore, in the interest of justice, this Court should also be retried with Counts I and II. (emphasis added.)
Thereafter, the State again appealed to the Court of 'Appeals raising five specific issues: 1) whether the trial court erred in granting a new trial based on its speculation that the jury may not have been unanimous in its theory of first degree murder; 2) whether the trial court erred in concluding as a matter of law that anonymity is an element of the depraved mind theory of first degree murder; 3) whether the trial court erred in ordering a new trial because the jury signed the firearm interrogatory despite the instruction to make a firearm determination only if they found Chavez guilty of second degree murder or voluntary manslaughter; 4) whether the trial court erred in ordering a new trial on Count III solely because Count III occurred at the same time and place as Counts I and II; and 5) whether the trial court erred in ordering a new trial on the basis of conflicting evidence.
I. Rule 45
The Court of Appeals determined that the trial court did not abuse its discretion in granting a new trial, and remanded the case for a new trial. The Court of Appeals held that, “under Rule 45, which allows a trial court to grant a new trial ‘if required in the interest of justice,’ a trial court may grant a new trial when it has a strong conviction that the jury has erred”, and that “[i]n determining whether to grant a new trial the court may weigh the evidence and the credibility of witnesses.”
In Chavez I, we recognized that a trial court has broad discretion in granting or denying a motion for new trial, and that such will not be reversed absent a clear and manifest abuse of that discretion. The Court of Appeals’ decision, however, would allow the trial judge to sit in judgment of a criminal case as the proverbial thirteenth juror. Pursuant to the Court of Appeals’ decision, the trial judge, after a jury verdict of guilty, could reweigh the evidence and the credibility of the witnesses, and because of considerable concern, overturn the verdict and award a new trial in the interest of justice. We reject this proposition and specifically agree with the Washington Supreme Court in State v. Williams, 96 Wash.2d 215, 221-222, 634 P.2d 868, 872-873 (1981) (citations omitted) (quoting in part Rettinger v. Bresnahan, 42 Wash.2d 631, 633-634, 257 P.2d 633, 635 (1953)), that the trial court’s discretion to grant a new trial:
[D]oes not give a trial court license to weigh the evidence and substitute its judgment for that of the jury, simply because it may disagree with the verdict. In this state a trial judge is not deemed a ‘thirteenth juror’.
It is the province of the jury to weigh the evidence, under proper instructions, and determine the facts. It is the province of the jury to believe, or disbelieve, any witness whose testimony it is called upon to consider. If there is substantial evidence (as distinguished from a scintilla) on both sides of an issue, what the trial court believes after hearing the testimony, and what this court believes after reading the record, is immaterial. The finding of the jury, upon substantial, conflicting evidence properly submitted to it, is final.
Accord, People v. Gennings, 196 Colo. 208, 583 P.2d 908 (1978).
Therefore, having reviewed the record, we determine that the trial court abused its discretion in weighing the evidence and credibility of the witnesses, and hold that the Court of Appeals erred in upholding this as a basis to award a new trial for the murder convictions and the aggravated battery conviction.
II. Jury Instructions
In addressing the jury instructions, the Court of Appeals merely stated that “[t]he confusion [by the jury about the instructions] is apparent from the answer to an interrogatory which the jury had been instructed to answer only if it found second degree murder or voluntary manslaughter.” The Court of Appeals therefore determined that on retrial the trial court would have the opportunity to correct faulty or confusing instructions.
The Court of Appeals is to follow the jury instructions promulgated by the Supreme Court; they are not free to abolish uniform jury instructions approved by this Court. State v. Scott, 90 N.M. 256, 561 P.2d 1349 (Ct.App.) cert. denied, 90 N.M. 637, 567 P.2d 486 (1977). In addition, the Court of Appeals is bound by the Supreme Court Order approving the instructions, and has no authority to set the instructions aside. Id. The general Use Note to the Uniform Jury Instructions provides in part that, “[i]n no event may an elements instruction be altered or an instruction given on a subject which a use note directs that no instruction be given.” Therefore, we determine that the trial court erred in finding approved instructions were inadequate and confusing as a basis for the new trial. The trial court’s disagreement with the required manner of instructing the jury is not an appropriate ground upon which a new trial may be granted, if those instructions are approved by this Court.
Conclusion
The decision of the Court of Appeals and the trial court are reversed. This case is remanded to the trial court. Chavez shall file his notice of appeal, should he exercise his right to do so, no later than ten days after the date of the mandate in this case.
IT IS SO ORDERED.
FEDERICI, C.J., and PAYNE and STOWERS, JJ., concur. SOSA, Senior Justice, respectfully dissents.