N.C.P.I.—Crim. 238.10.1

The defendant has been charged with disseminating obscenity

intentionally in the presence of a minor.

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

five things beyond a reasonable doubt:

First, that the defendant was a [person 18 years or older] [firm]

[corporation].

Second, that the defendant intentionally1 disseminated material by:

a) [selling] [offering to sell] [agreeing to sell]

b) [delivering] [offering to deliver] [agreeing to deliver]

c) [providing] [offering to provide] [agreeing to provide]

d) [publishing] [exhibiting] [making available]

any [writing] [picture] [record] [representation or embodiment].

Third, that the material was obscene. Material is obscene if when judged

with reference to ordinary adults:

a. The average person applying contemporary community standards

would find that the material depicts or describes sexual conduct in a patently

offensive way (define sexual conduct pertinent to the case as set out by the

statute).2 Material is patently offensive when, taken as a whole, it affronts

contemporary community standards relating to the description or

representation of sexual matters.

b. And, the average person applying contemporary community

standards relating to the depiction or description of sexual matters would find

that the material taken as a whole appeals to the prurient interest in sex. A

prurient interest is an unhealthy, abnormal, lascivious, shameful or morbid

sexual interest.

Contemporary community standards must be interpreted as the current

standards here in this community.3 Both of these tests of obscenity that I have

related to you must be considered and judged with reference to the average

adult in this community, rather than the most tolerant or the most prudish.

The obscene character of the materials, if any, may be determined by

you, based on the viewing of the alleged obscene material. In addition to

considering all of the evidence presented, a juror is entitled to draw on his or

her understanding and knowledge of the views of the average adult person in

this community and of the tolerance of the average adult person in this

community in making the required determinations which are necessary for the

resolution of this case.

In determining whether certain material is obscene, you should consider

the entire [writing] [picture] [record] [representation or embodiment] as a

whole and not part by part. You may also consider whether the predominant

theme and purpose of the material, when viewed as a whole and not part by

part, is an appeal to the prurient interest of the average adult person in this

community.

c. And, applying the reasonable person standard, you find that the

material taken as a whole lacks serious literary, artistic, political or scientific

value.4

Fourth, that the defendant knew the nature and content of the

materials5 that he intentionally disseminated. (It is not necessary that the

defendant intended or believed the material to be obscene).

And Fifth, that the defendant knowingly did so in the presence of a minor

under 18 years of age.

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

about the alleged date that the defendant was a [person 18 years or older]

[firm] [corporation], that the defendant intentionally disseminated obscene

material by

a) [selling] [offering to sell] [agreeing to sell]

b) [delivering] [offering to deliver] [agreeing to deliver]

c) [providing] [offering to provide] [agreeing to provide]

d) [publishing] [exhibiting] [making available]

any [writing] [picture] [record] [representation or embodiment], that the

defendant knew the nature and contents of the material, and that the

defendant knowingly did so in the presence of a minor under 18 years of age,

it would be your duty to return a verdict of guilty. If you do not so find or have

a reasonable doubt as to one or more of these things, it would be your duty

to return a verdict of not guilty.