N.C.P.I.—Crim. 219B.65

The defendant has been charged with knowingly [possessing]

[selling] [delivering] a skimming device.

For you to find the defendant guilty of this offense, the State must

prove beyond a reasonable doubt that the defendant knowingly

[possessed] [sold] [delivered] a skimming device. A skimming device is a

self-contained device that (1) is designed to read and store in the

device’s internal memory information encoded on the computer chip,

magnetic strip or stripe, or other storage mechanism of a financial

transaction card or from another device that directly reads the information

from a financial transaction card, and (2) is incapable of processing the

financial transaction card information for the purpose of obtaining,

purchasing, or receiving goods, services, money, or anything else of value

from a merchant.2

NOTE WELL: Use the appropriate subsequent

parenthetical phrase based on the offense charged in

the indictment.

POSSESSION OF SKIMMING DEVICE

(A person possesses a skimming device when the person is aware

of its presence, (the defendant knows that what the defendant possessed

was a skimming device,)3 and has (either by [himself] [herself] or

together with others) both the power and intent to control the disposition

or use of the skimming device.

NOTE WELL: If constructive possession is an issue, or

if an amplified definition of actual possession is

needed, refer to N.C.P.I.—Crim. 104.41 for further

instructions.

If you find from the evidence beyond a reasonable doubt that on or

about the alleged date, the defendant knowingly possessed a skimming

device, it would be your duty to return a verdict of guilty. If you do not so

find or have a reasonable doubt, it would be your duty to return a verdict

of not guilty.)

[SALE] [DELIVERY] OF SKIMMING DEVICE

(For you to find the defendant guilty of this offense, the State must

prove beyond a reasonable doubt that the defendant knowingly [sold]

[delivered] a skimming device to (name buyer or distributee) (the

defendant knowing that what the defendant [sold] [delivered] was a

skimming device)4.

If you find from the evidence beyond a reasonable doubt that on or

about the alleged date, the defendant knowingly [sold] [delivered] a

skimming device to (name buyer or distributee), it would be your duty to

return a verdict of guilty. If you do not so find or have a reasonable

doubt, it would be your duty to return a verdict of not guilty.)

NOTE WELL: N.C. Gen. Stat. § 14-113.9(a)(6) provides

that the prohibition against possessing, selling, or

delivering a skimming device does not apply to an

employee, officer, or agent of any of the following

while acting within the scope of the person’s official

duties: (1) A law enforcement agency; (2) A State or

federal court; (3) An agency or department of the

State, local, or federal government; or (4) A financial or

retail security investigator employed by a merchant. If

the defendant presents evidence of one or more of

these exceptions, the trial judge should instruct on the

relevant subsection below with regards to the

defendant’s evidence as follows:

(If the defendant was a(n) [employee] [officer] [agent] of [a law

enforcement agency] [a [State] [federal] court] [an [agency]

[department] of the [State] [local] [federal] government] [a [financial]

[retail] security investigator employed by a merchant], acting within the

scope of the defendant’s official duties when the defendant [possessed]

[sold] [delivered] a skimming device, the defendant’s [possession] [sale]

[delivery] of the skimming device was lawful, and the defendant is not

guilty.)