CONCURRING OPINION OF
LEVINSON, J.,WITH WHOM
MOON, J., JOINSI concur in the result reached by the majority opinion inasmuch as it is apparent that State v. Briones, 71 Haw. *47086, 784 P.2d 860 (1989) (Briones I), was incorrectly decided, precisely because this court “took it upon itself to decide which count the jury would have convicted on if properly instructed.” Majority opinion at 452. In good conscience, however, I cannot lay this court’s mistake at the feet of the petitioner’s appellate counsel, and I believe that it is unfair to do so. The petition in this case presents nothing new; the record before us differs not one iota from that in Briones I. Although I am deeply troubled by the potential “precedential quagmire” created by a reexamination of our past opinions via a Hawaii Rules of Penal Procedure (HRPP) Rule 40 petition, see majority opinion at 453 n.5,1 cannot escape the fact that the holding of Briones I is tantamount to appellate “plain error” and we should simply “fess up” to it.
The majority acknowledges that the circuit court adequately instructed the jury regarding the elements of attempted first degree murder (Count I), second degree murder (Count II), and attempted second degree murder (Count III).1 Majority opinion at 450-52. Moreover, I read the majority opinion to assume, arguendo, that the jury’s guilty verdict as to Count I was supported by substantial evidence;2 that conclusion is certainly implicit in Briones I, see 71 Haw. at 94-95, 784 P.2d at 864, and I subscribe to it.
*471I understand the reasoning of the majority opinion to be as follows: (1) HRS § 701-109(l)(c) (1985) forbids convictions of more than one offense if inconsistent findings of fact are required to establish the commission of the offenses; (2) the state of mind with respect to the attendant circumstance of “in the same incident,” necessary to support the petitioner’s conviction of the attempted first degree murder of two persons, is inconsistent with that necessary to support his separate convictions of second degree murder and attempted second degree murder, see HRS §§ 707-701(l)(a) (Supp. 1992), 707-701.5 (Supp. 1992), 705-500 (1985), 702-206(l)(b) (1985), and 702-206(2)(b) (1985); (3) the circuit court should have instructed the jury that it could not convict on both Count I, on the one hand, and Counts II and III, on the other; (4) the circuit court’s failure so to instruct the jury resulted in guilty verdicts implicitly containing inconsistent factual findings; (5) the failure of the petitioner’s trial counsel to raise the issue of inconsistent verdicts constituted ineffective assistance; and (6) the petitioner is therefore entitled to a new trial on Counts I, II, and III. I agree with points (1) through (4) and point (6); on the other hand, I believe that point (5) improperly deflects responsibility from this court.
It is obvious that had the circuit court instructed the jury that it could not decide Counts II and III of the complaint if it was able to reach a unanimous guilty verdict as to Count I, and vice versa, the jury’s guilty verdict as to Count I would have foreclosed it from reaching Counts II *472and III, and there would have been no inconsistent verdicts. The Briones I court recognized as much when it held that “the [petitioner’s] attempted first degree murder conviction precluded his second degree murder and attempted second degree murder convictions.” 71 Haw. at 94-95, 784 P.2d at 864.
It is equally obvious, as the majority maintains at 453 of its opinion (and as the Briones I court should have recognized as well), that the “[circuit court’s] instructions to the jury ... should have ... included an explanation that a unanimous guilty verdict on [C]ount I, attempted first degree murder, would necessarily preclude guilty verdicts on Counts II and III, second degree murder and attempted second degree murder, respectively,” and that “[t]he omission of proper instructions allowed the jury’s verdicts to contain inconsistent factual findings in violation of HRS § 701-109(l)(c)____” (Emphasis added.) See State v. Liuafi, 1 Haw. App. 625, 643, 623 P.2d 1271, 1282 (1981); cf. State v. Horn, 8 Haw. App. 167, 169-70, 796 P.2d 503, 504-05 (1990) (cited with approval in State v. Klafta, 73 Haw. 109, 118, 831 P.2d 512, 517 (1992)).
I believe, however, that the majority is mistaken when it suggests that “[t]he key issue thus becomes whether [the petitioner’s] . . . counsel’s failure to raise the issue of inconsistent factual findings may have affected [the petitioner’s] right to a fair trial and constituted ineffective assistance of counsel.” Majority opinion at 454. On the contrary, “the trial court is the sole source of all definitions and statements of law applicable to an issue to be resolved by the jury.” State v. Williamson, 72 Haw. 97, 103, 807 P.2d 593, 596 (1991) (emphasis added). Moreover,
[it] is the duty of the circuit judge to see to it that the case goes to the jury in a clear and intelligent *473manner, so that they may have a clear and correct understanding of what it is they are to decide, and he shall state to them fully the law applicable to the facts.
State v. Feliciano, 62 Haw. 637, 643, 618 P.2d 306, 310 (1980) (quoting People v. Henry, 395 Mich. 367, 373-74, 236 N.W.2d 489, 492 (1975)) (emphasis added). And faced with inaccurate or incomplete instructions, “[t]he trial court has a duty to, with the aid of counsel, either correct the defective instruction or to otherwise incorporate it into its own instruction” State v. Riveira, 59 Haw 148, 155, 577 P.2d 793, 797 (1978) (emphasis added and citations omitted); see HRPP 30(c) (1981). In other words, the ultimate responsibility properly to instruct the jury in this case lay with the circuit court and not with trial counsel.
In Briones I, “we affirm[ed] the [petitioner’s] conviction and sentence as to the attempted first degree murder offense (Count I) . . . , reverse[d] the conviction and sentence as to the second degree murder offense (Count II) and the attempted second degree murder offense (Count III), and remand[ed] with instructions to dismiss Counts II and III.” 71 Haw. at 95, 784 P.2d at 864. On the record before us at the time, which, as I have noted, has not changed one iota by the present petition, that was the wrong result for the very reasons cited by the majority opinion but unfairly charged to the petitioner’s appellate counsel.
The majority’s conclusion that the ultimate disposition of the present matter was somehow “altered” by the petitioner’s counsel’s failure to argue on appeal that the petitioner’s multiple murder convictions violated HRS § 701-109(l)(c), majority opinion at 467, is, in my view, incorrect. If the Briones I court had merely read the very United States Supreme Court case law on which the *474majority opinion now relies, it “would not have found the [petitioner’s] multiple convictions to be ‘harmless error.’ ” See majority opinion at 467 n.19.
As a general proposition, “[i]nconsistent verdicts are not per se grounds for reversal.” Liuafi, 1 Haw. App. at 643, 623 P.2d at 1282; see generally United States v. Powell, 469 U.S. 57, 105 S. Ct. 471, 83 L. Ed. 2d 461 (1984); United States v. Gaddis, 424 U.S. 544, 96 S. Ct. 1023, 47 L. Ed. 2d 222 (1976); Annotation, Inconsistency of Criminal Verdict as Between Different Counts of Indictment or Information, 18 A.L.R.3d 259 (1968). Nevertheless, Milanovich v. United States, 365 U.S. 551, 81 S. Ct. 728, 5 L. Ed. 2d 773 (1961), on which the majority opinion now relies, see majority opinion at 457, 458-59, and which had been on the books for eighteen years when Briones I was decided, is dispositive of the issue before us.
In Milanovich, a husband and wife were convicted of stealing property belonging to the United States, and the wife was also convicted of receiving and concealing the stolen property. Id. at 552, 81 S. Ct. at 728. A five-member majority of the United States Supreme Court, through Justice Stewart, held that setting aside, on appeal, a shorter concurrent sentence for receiving, following the wife’s conviction of both stealing and receiving, did not cure any prejudice resulting from the district court’s failure to instruct the jury that it could convict the wife of either stealing or receiving but not both. Id. at 555, 81 S. Ct. at 730.3 The Court’s language upon which the *475majority apparently relies in the present case is the following:
It is now contended that setting aside the sentence on the receiving count was not enough — that the conviction on the larceny count must also be reversed, and the case remanded for a new trial. The argument is that although the evidence was sufficient to support a conviction for either larceny or receiving, the judge should have instructed the jury that a guilty verdict could be returned upon either count but not both. It is urged that since it is now impossible to say what verdict would have been returned by a jury so instructed, and thus impossible to know what sentence would have been imposed, a new trial is in order.
We think that the point is well taken.... We hold ... that the trial judge erred in not charging that the jury could convict of either larceny or receiving, but not of both.
. . . [Tjhere is no way of knowing whether a properly instructed jury would have found the wife guilty of larceny or of receiving (or, conceivably, of neither). Thus we cannot say that the mere setting aside of the shorter concurrent sentence sufficed to cure any prejudice resulting from the trial judge’s failure to instruct the jury properly.
Id. at 554-55, 81 S. Ct. at 730 (emphasis added and footnote omitted).
*476Milanovich was distinguished by a unanimous Court, also through Justice Stewart, in United States v. Gaddis, supra. In Gaddis, the defendants were convicted of entering a federally insured bank with intent to rob it by force and violence, assault during the course of the robbery, and possessing funds stolen in the robbery. 424 U.S. at 545-46,96 S. Ct. at 1025. The court of appeals, relying in part on Milanovich, reversed and ordered a new trial. Id. at 546-47,96 S. Ct. at 1025-26. On certiorari, the Gaddis court held that: (1) the defendants, upon being convicted of robbing the bank, could not also be convicted of receiving or possessing the robbery proceeds; (2) the,error could be cured by vacating the convictions for receiving the proceeds rather than by directing a new trial on qll counts; and (3) the defendants’ concurrent sentences imposed for bank robbery and entering the bank with intent to rob would be vacated, leaving the defendants under W single sentence imposed for assault during the course of the bank robbery. Id. at 550, 96 S. Ct. at 1027. '
Accordingly, the Gaddis court reversed the judgment of the district court and remanded for imposition of sentence consistent with its opinion. Id. at 551-52, 96 S. Ct. at 1027. In so doing, the Court distinguished Milanovich as follows:
The Court of Appeals was mistaken... in supposing that our decision in Milanovich required the ordering of a new trial as the “proper appellate remedy” for the District Judge’s error in this case. The very unusual facts in that case were wholly different from those presented here.
In Milanovich . . . [t]he trial judge refused to instruct the jury that the petitioner could not be convicted for both stealing and receiving the same *477currency, and she was convicted and separately sentenced on both counts. This Court held that... the jury should have been instructed that the petitioner could not be separately convicted for stealing and receiving the proceeds of the same theft. Since it was impossible to say upon which count, if either, a properly instructed jury would have convicted the petitioner, . . . her convictions were set aside and the case was remanded for a new trial.
The present case is of a very different order.... [T]he trial judge should have dismissed Count 3 of the indictment. His error in not doing so can be fully corrected now by the simple expedient of vacating the convictions and sentences under that count.
Id. at 549-50, 96 S. Ct. at 1026-27 (emphasis added).
In my view, the reasoning of Milanovich and Gaddis controls the disposition of the present case, and Briones I is completely inconsistent with that reasoning. If, as we all agree, the circuit court had instructed the jury that it could reach Counts II and III of the complaint only if it was unable to arrive at a unanimous guilty verdict as to Count I, then neither we nor the Briones I court would have been faced with verdicts based on inconsistent factual findings.4 But the jury was not so instructed, and, as the majority recognizes at 457 of its opinion (and the Briones I court should have recognized), the petitioner’s jury could have viewed the evidence before it as sufficient to support alternative convictions of attempted first degree *478murder, on the one hand, and second degree murder and attempted second degree murder, on the other. Accordingly, unlike the record before the Gaddis Court, but as in Milanovich, it is “impossible to say upon which count... a properly instructed jury would have convicted the petitioner . . . .” For this reason, this court erred in Briones I in affirming the petitioner’s attempted first degree murder conviction and remanding with instructions to dismiss the second degree murder and attempted second degree murder counts. And for the same reason, the fact that the jury actually decided Counts II and III cannot be harmless error.
I would grant the petition but would not hold that the petitioner was denied the effective assistance of counsel. Ultimate responsibility for misapprehending the relationship between existing case law and the statutory scheme created by HRS §§ 707-701 and 707-701.5 was this court’s alone.
I note, however, as does the majority opinion at 452 n.4, that “in an incident separated in time” is neither an element of second degree murder, see HRS § 707-701.5 (Supp. 1992), nor of attempted second degree murder, see id. and HRS § 705-500 (1985).
[Ejvidence adduced in the trial court must be considered in the strongest light for the prosecution when the appellate court passes on the legal sufficiency of such evidence to support a conviction; the same standard applies whether the case was before a judge or a jury. . . . The test on appeal is not whether guilt is established *471beyond a reasonable doubt, but whether there was substantial evidence to support the conclusion of the trier of fact.
State v. Batson, 73 Haw. 236, 248, 831 P.2d 924, 931 (1992) (citations omitted).
Justice Frankfurter, dissenting on behalf of four members of the Milanovich Court, would have affirmed the district court’s imposition of the two concurrent sentences on the basis that the offenses of stealing and receiving amounted to “two clearly severed transactions” *475involving “two behaviors or transactions by defendant clearly and decisively separated in time and in will.” Id. at 559, 562, 81 S. Ct. at 732, 734.
“When an instruction has been... explained... by the court, it will be presumed on appeal that the jury accepted the [instruction] as the law of the case.” State v. O’Keefe, 45 Haw. 368, 372, 367 P.2d 91, 94 (1961) (citation omitted).