Ala. Pattern Jury Instr. (Criminal) 13A-12-192(B)POSSESSION

Possession of Obscene Matter

[*These instructions apply only to offenses committed before 10/1/2024]

The defendant is charged with the possession of obscene matter.

A person commits the crime of possession of obscene matter if

he/she knowingly possesses any obscene matter that contains a visual

depiction of a person under the age of 17 years engaged in any act of sado-masochistic abuse, sexual intercourse, sexual excitement, masturbation,

breast nudity, genital nudity, or other sexual conduct.

To convict, the State must prove beyond a reasonable doubt each of

the following elements:

(1) The defendant possessed an obscene matter that contained

a visual depiction of a person under the age of 17 years;

(2) The person under the age of 17 was engaged in an act of

sado-masochistic abuse, sexual intercourse, sexual excitement,

masturbation, breast nudity, genital nudity, or other sexual

conduct;

(AND)

(3) The defendant did so knowingly.

[Read as appropriate]: You may infer from the following factors

whether or not the person displayed or depicted in any obscene matter is

under the age of 17 years:

(1) The general body growth and bone structure of the person;

(2) The development of pubic hair or body hair on the person;

(3) The development of the person's sexual organs;

(4) The context in which the person is placed by any accompanying

printed or text material;

(5) Any expert testimony as to the degree of maturity of the

person. [13A-12-193(b)]

The existence of any or all of the factors listed shall not operate to change

the requirement that before any conviction may be had, the State must

convince you beyond a reasonable doubt that the person engaged in the act

of sado-masochistic abuse, sexual intercourse, sexual excitement,

masturbation, breast nudity, genital nudity, or other sexual conduct in the

visual depiction is under the age of 17 years. [13A-12-193(c)]

[Read as appropriate]: The State shall not be required to establish the

identity of the person alleged to be under the age of 17 years who is engaged

in any of the acts which are visual depiction. [13A-12-194]

Obscene:

(a) When used to describe any matter that contains a visual reproduction of

breast nudity, the term shall include all of the following:

(1) Applying contemporary local community standards, on the

whole, appeals to the prurient interest;

(2) Is patently offensive;

(3) On the whole, lacks serious literary, artistic, political, or scientific

value.

(b) When used to describe matter that is a depiction of an act of sado-masochistic abuse, sexual intercourse, sexual excitement, masturbation,

genital nudity, or other sexual conduct, the term means matter containing a

visual reproduction that itself lacks serious literary, artistic, political, or

scientific value.

[13A-12-190(13)]

[Read as appropriate]: Where the circumstances of the

dissemination or public display of matter indicates that it is being

commercially exploited by the defendant for its prurient appeal, such

evidence may be considered in determining whether the matter appeals to

the prurient interest, is patently offensive, or lacks serious literary, artistic,

political or scientific value. [13A-12-195]

Local Community is the judicial circuit in which the indictment is

brought. [13A-12-190(14)]

Matter is any book, magazine, newspaper, or other printed material,

or any picture, photograph, motion picture, video cassette, tape, record,

digital video disc (DVD), video compilation, or electronic depiction in a

comparable format, or an

image, file, download, or other content stored, or reproduced by using a

computer or electronic device or other digital storage, or any other thing,

articles, or materials that either are or contain a photographic or other visual

depiction of a live act, performance, or event. [13A-12-190(12)]

Visual Depiction is a portrayal, representation, illustration, image,

likeness, or other thing that creates a sensory impression, whether an

original, duplicate or reproduction. [13A-12-190(15)]

Sado-Masochistic Abuse means either of the following:

(a) Flagellation or torture, for the purpose of sexual stimulation, by or

upon a person who is nude or clad in undergarments or in a revealing or

bizarre costume; [OR]

(b) The condition of a person who is nude or clad in undergarments

or in a revealing or bizarre costume being fettered, bound, or otherwise

restrained for purpose of sexual stimulation.

[13A-12-190(5)]

Sexual Intercourse is intercourse, real or simulated, whether genital-genital, oral-genital, anal-genital or oral-anal, whether between persons of

the same or opposite sex or between a human and an animal.

[13A-12-190(7)]

Sexual Excitement is the condition of human male or female genitals

when in a state of sexual stimulation. [13A-12-190(6)]

Masturbation is manipulation, by hand or instrument, of the human

genitals, whether one’s own or another’s for the purpose of sexual

stimulation.

[13A-12-190(8)]

Breast Nudity is the lewd showing of the post-pubertal human female

breasts below a point immediately above the top of the areola. [13A-12-

190(10)]

Genital Nudity is the lewd showing of the genitals or the pubic

area. [13A-12-190(11)]

Other Sexual Conduct is any touching of the genitals, pubic areas, or

buttocks of the human male or female, or the breasts of the female, whether alone

or between members of the same or opposite sex or between humans and animals

in an act of apparent sexual stimulation or gratification. [13A-12-190(9)]

A person acts knowingly with respect to conduct or to a circumstance

described by a statute defining an offense when he/she is aware that his/her

conduct is of that nature or that the circumstance exists. [13A-2-2(2)]

If you find from the evidence that the State has proved beyond a reasonable

doubt each of the elements of possession of obscene matter, then you shall find the

defendant guilty of possession of obscene matter.

If you find from the evidence that the State has failed to prove any one or

more of the elements of possession of obscene matter, then you cannot find the

defendant guilty of possession of obscene matter.