The opinion of the court was delivered by: Long, J.
On appeal from the Superior Court, Appellate Division.
A grand jury indicted Roy R. Williams, Jr., an off-duty police officer, for firing his service revolver at the automobile of another driver with whom he claimed to have been in a motor vehicle accident. The charges were second-degree possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-4a (Count One); fourth-degree aggravated assault by knowingly pointing a firearm at another person, under circumstances manifesting extreme indifference to human life in violation of N.J.S.A. 2C:12-1b(4) (Count Two); second-degree aggravated assault by purposely attempting to cause serious bodily injury to another person, in violation of N.J.S.A. 2C:12-1b(1) (Count Three); and attempted murder, in violation of N.J.S.A. 2C:5-1, 2C:11-3 (Count Four). Tried to a jury, Williams was acquitted on Counts Three and Four, but convicted on Counts One and Two.
The trial court sentenced Williams to a five-year custodial term with three years of parole ineligibility on the conviction for possession of a weapon for an unlawful purpose and to a concurrent eighteen-month custodial term on the conviction for aggravated assault.
Williams appealed, raising a series of issues including prosecutorial misconduct, erroneous evidential admissions, and an inadequate jury instruction on the possession of a weapon for an unlawful purpose count. His conviction was affirmed in an unpublished opinion, although the Appellate Division was divided over the sufficiency of the jury instruction.
The majority determined that the instruction adequately identified the unlawful purpose with which Williams was alleged to have possessed the firearm. In a dissenting opinion, Judge Wecker disagreed, finding that although the evidence presented at trial was sufficient to support Williams's conviction, the inadequacy of the trial court's instruction allowed the jury to convict him without finding, beyond a reasonable doubt, that he had the purpose to use his gun unlawfully against another. The dissent identified four errors with respect to the trial court's instruction: (1) failure to define the "specific unlawful purpose"; (2) failure to relate the alleged unlawful purpose to the evidence; (3) failure to focus on the time when Williams's possession changed from lawful to unlawful; and (4) failure to instruct that Williams's "purpose" was to be determined by his subjective state of mind.
The case is before us as of right by virtue of the Appellate Division dissent on the issue of the adequacy of the jury instruction regarding possession of a weapon for an unlawful purpose.
The following evidence was adduced at trial. On June 22, 1995, Williams was involved in what he characterized as a hit-and-run accident between Tammy Erickson in one vehicle and Williams, his wife, and son in the other. At the time of the accident, Mrs. Williams was driving because Williams, who had been injured on the job a week earlier, was taking pain medication and was unable to drive. According to the Williamses, their mini-van was rear-ended by Erickson while stopped at a traffic light. When Erickson failed to pull over to exchange insurance information, Mrs. Williams pursued the fleeing vehicle, sounding her horn and flashing her headlights. At one point during the chase, Williams lost sight of Erickson's vehicle, but shortly after spotted it and attempted to block the roadway to prevent Erickson's escape.
What occurred next was the subject of much dispute at trial. The defense theory, as developed through the testimony of the Williamses, was that after stopping the van in the roadway Mrs. Williams proceeded to get out. Williams also exited the van with badge in hand identifying himself as a police officer. According to their testimony, it was at that point that Erickson's vehicle, traveling at a high rate of speed, headed straight toward the side of the van where Mrs. Williams was standing. Mrs. Williams testified that she yelled for her husband and, as she was jumping out of the way of Erickson's vehicle, she hit the door on the back side of the van. When Williams observed Erickson's vehicle headed in the direction of his wife, he dropped his badge and reached for his service revolver, which he legally carried "in a gunnysack" attached to his waist. Williams claimed that he fired one round in the direction of Erickson's passing vehicle after hearing his wife's screams because he believed she was in imminent danger of being hit.
Williams testified that he fired his gun as Erickson's car passed him, within a "split second" of hearing his wife scream his name. In response to the question from the assistant prosecutor, "What were you aiming at?" Williams answered: "I just fired, sir." When asked whether he wanted to fire a shot at the person who might have just run over his wife, Williams said: "I just fired at the car in defense of my wife, sir." In response to repeated questions with respect to the order of events surrounding the firing, Williams answered "My wife screamed and I fired in response to that." "I fired in response to my wife's screams, sir." "In my mind, my wife's life was in danger." "I fired because Sandy was in imminent danger of being struck by that vehicle." "I fired in response to my wife screaming and the car was passing." The bullet hit the rear windshield of Erickson's vehicle and exited through the front windshield without striking Erickson.
Erickson's version of the events leading up to the shooting was in stark contrast. She denied having been involved in any collision with the Williams' car on June 22, 1995, inferentially suggesting that she had been the victim of an unprovoked attack by Williams. She testified that while driving to work she observed a van stopped in a "weird spot" in the roadway. She then saw a man next to the van pointing a gun in her direction, at which time she hit the accelerator and turned the corner. The bullet struck her windshield. Erickson testified that the woman in the Williams' van did not get out. Erickson telephoned police upon reaching the diner where she was employed as a waitress.
The State also presented four eyewitnesses whose testimony substantially corroborated Erickson's claim that there were no other persons physically present in the street when Williams fired his weapon. On cross-examination the defense challenged the ability of those witnesses to observe what occurred from their respective locations and also questioned the point at which their attention was first drawn to the events at issue here. On that evidence, the jury convicted Williams as outlined above.
Williams's essential claim at trial was that he acted in defense of his wife in firing his service revolver. That claim, if proven, had two possible effects: to exculpate him altogether on the substantive charges of attempted murder and aggravated assault on a justification theory,*fn1 and to provide a "failure of proof" defense to the charge that he possessed the weapon for an unlawful purpose. See, e.g., State v. Bowens, 108 N.J. 622, 633-35 (1987) (holding in context of murder charge that reasonableness of defendant's conduct bears on whether essential elements of Code offense have been met). Those are two entirely distinct uses of Williams's defense of another evidence.
In order to exculpate him on the substantive charges of attempted murder and aggravated assault, Williams's belief in the need to use force to defend his wife had to be "reasonable." Although the Code, as originally drafted, approached justification in terms of the subjective attitudes of the criminal actor, on adoption by the Legislature, it was modified to codify the pre-Code common law objective standard of self-defense. Id. at 629; N.J.S.A. 2C:3-4a, -5a. Under that standard a jury must find that a defendant's belief in the need for force is reasonable in order to excuse him from liability for a crime whose elements the State has proved. Ibid. Thus, if the jury found that Williams's belief in the need to use force against Erickson to protect his wife was honest but unreasonable, he could not have been excused from liability for the substantive offenses of attempted murder and aggravated assault.
The "failure of proof" defense advanced with respect to possession of a weapon for an unlawful purpose is entirely different. Unlike traditional notions of "self-defense," it does not exonerate a defendant who, based on the State's proofs, committed an illegal act. State v. Harmon, 104 N.J. 189, 207 (1986). On the contrary, it admits evidence to defeat the State's proof of the elements of the offense in the first instance. Ibid. In this case, those elements are:
(1) the item possessed was a "firearm" within the meaning of N.J.S.A. 2C:39-1(f); (2) the defendant "possessed" it, which under N.J.S.A. 2C:2-1(c) requires knowledge or awareness of his control over the item; (3) the defendant's purpose or conscious objective was to use it against the person or property of another; and (4) the defendant intended to use it in a manner that was proscribed by law. [Id. at 212.]
The fourth element is pivotal here. It requires a finding that a defendant armed himself "with the actual purpose of using the weapon against another in a criminal manner." Id. at 204. Because N.J.S.A. 2C:39-4a is directed at penalizing the intent to use a weapon affirmatively to commit a crime, id. at 199, the focus is on the subjective attitude of the accused. The State must prove beyond a reasonable doubt that the accused intended to use the weapon unlawfully. Where, as here, state of mind is an essential or material element of the offense, a defendant may not be deprived of the opportunity to assert a mistaken belief that could negate the mental state required to convict. Indeed, the Sixth Amendment affords a defendant that right. State v. Sexton, 160 N.J. 93, 104- 05 (1999).
We agree entirely with the dissenters that if the jury found that Williams's belief in the need to use force in defense of his wife was honest but unreasonable, that belief could not serve to exonerate him of attempted murder and aggravated assault because we do not recognize "imperfect self-defense" in this State. State v. Branch, 155 N.J. 317, 329 (1998). But nothing in that conclusion eliminates the right of a defendant like Williams to challenge the proofs advanced on the State's case in chief by showing that he lacked the intention to use his weapon unlawfully. He had a right to show that he, in fact, was motivated by an honestly held but unreasonable belief that such force was required to protect his wife. It simply does not follow that because Williams's honest but unreasonable belief could not exonerate him of attempted murder and aggravated assault, it did not bear on the State's burden to prove that he intended to use his weapon unlawfully.
The dissenters' suggestion that this opinion legitimatizes imperfect self-defense is wide of the mark. Post at ___ (slip op. at 16). Indeed, it misconceives the notion of "imperfect self-defense." Evidence of self-defense (or defense of another) is admissible as an affirmative defense under the New Jersey Code of Criminal Justice. Harmon, supra, 104 N.J. at 206; N.J.S.A. 2C:3-4,-5.
It can excuse a defendant from responsibility for a crime that the State has proved against him only if certain statutory requirements are met. Those requirements are that the defendant honestly and reasonably believed that the use of defensive force was necessary. State v. Hines, 303 N.J. Super. 311, 323 (App. Div. 1997); N.J.S.A. 2C:3-4, -5. What makes defensive evidence "imperfect" is its failure to satisfy all of the requirements the Legislature established for its potential use as an affirmative defense. Thus, if a defendant was not reasonable in believing in the need to use defensive force, he could not invoke the affirmative defense of justification because his evidence would be "imperfect" for that purpose. Such evidence would not be "imperfect," however, if it were used for another purpose for which the Legislature had not established both the honest and reasonable requirements. Thus, as bearing on the State's proof of the mental element of N.J.S.A. 2C:39-4a in its case in chief, evidence that a defendant honestly but unreasonably believed in the need to use defensive force is plainly admissible. As we explained in Harmon, supra, "[i]f an individual's possession of a firearm is motivated honestly by a self-protective purpose, then his conscious object and design may remain not to do an unlawful act, and a material element of a 39-4(a) violation has not been met." 104 N.J. at 207.
In sum, the dissenters' view flows from a failure to acknowledge the well-established distinction between a defense based on the existence of a fact that negates an essential element of the crime as defined, and the narrower concept of an affirmative defense that excuses conduct that is otherwise unlawful. See, e.g., State v. Bess, 53 N.J. 10, 16-17 (1968) (drawing distinction under pre-Code law between objective justification of self defense that might excuse second-degree murder and subjective intentions of self defense that could negate premeditation and deliberation required for first-degree murder). Obviously, these considerations cannot be separated in law any more than they can in life. It is inevitable that in many cases the reasonableness of the defendant's conduct will be presented to the jury in defense of the substantive crimes charged. Hence, any use of a firearm may involve consideration of those limited circumstances in which the use of deadly force is justifiable and may resolve the question whether the purpose was to commit an act proscribed by law. [Harmon, supra, 104 N.J. at 209 (emphasis added).]
Although an honest but unreasonable belief in the need to use force for protective purposes would not serve to exonerate Williams from the substantive charges of attempted murder and aggravated assault because of the Code's interdiction against "imperfect self- defense," the use of such evidence for a different purpose altogether, that is, to controvert the State's proof of the intent element of N.J.S.A. 2C:39-4a is entirely proper and indeed unremarkable. That is the backdrop on which the jury charge must be evaluated.
Because Williams did not object to the court's instruction at trial, the standard of review is plain error. R. 1:7-2. Under that standard, a defendant not only must demonstrate that the instruction was flawed, but also that in the circumstances presented "the error possessed a clear capacity for producing an unjust result." State v. Melvin, 65 N.J. 1, 18 (1974); R. 2:10-2. The possibility of an unjust result must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971). We conclude that Williams has satisfied the plain error standard in connection with the jury instruction.
After giving preliminary instructions, the trial court charged the jury concerning each of the four offenses in the indictment. Second-degree possession of a weapon for an unlawful purpose was the first offense addressed by the court. On the critical element of whether Williams intended to use the gun illegally, the court stated:
The fourth element that the State must prove beyond a reasonable doubt is that the Defendant had a purpose to use the firearm in a manner that was prohibited by law.
I have already defined purpose for you.
The mental element of purpose to use a firearm unlawfully requires that you find that the Defendant possessed the firearm with the conscious objective, design, or specific intent to use it against the person or property of another in an unlawful ...