N.C.P.I.—Civil 813.63

NOTE WELL: Use this instruction only in connection

with:

N.C.P.I.-Civil 813.35 ("Representation of Winning a

Prize")

N.C.P.I.-Civil 813.36 ("Representation of Eligibility to

Win a Prize")

N.C.P.I.-Civil 813.37 ("Representation of Being

Specially Selected")

N.C.P.I.-Civil 813.38 ("Simulation of Checks and

Invoices")

The (state number) issue reads:

"Was the defendant engaged in commerce at the time of the

conduct complained of?"

You will answer this issue only if you have found in the plaintiff's

favor on the preceding [issue] [issues] of [representation of winning a

prize] [representation of eligibility to win a prize] [representation of

being specially selected] [simulation of checks and invoices].

On this issue the burden of proof is on the plaintiff. This means

that the plaintiff must prove, by the greater weight of the evidence, that

the defendant was engaged in commerce at the time of the conduct

complained of.

A person is "engaged in commerce" when he is engaged in a

business activity.5

(A "business activity" is the way a business conducts its regular,

day-to-day activities or affairs (such as the purchase and sale of goods),

or whatever other activities the business regularly engages in and for

which it is organized.6)

Finally, as to this issue on which the plaintiff has the burden of

proof, if you find by the greater weight of the evidence that the

defendant was engaged in commerce at the time of the conduct

complained of, then it would be your duty to answer this issue "Yes" in

favor of the plaintiff.

If, on the other hand, you fail to so find, then it would be your duty

to answer this issue "No" in favor of the defendant.