N.C.P.I.—Crim. 238.10A.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 obscenity by

[[presenting] [directing] a [play] [dance] [performance]] (or) [participating

directly in that portion of a [play] [dance] [performance] which makes it

obscene].

Third, that the performance the defendant disseminated was obscene.

Material is obscene 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 your 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 performances, if any, may be determined

by you based on the viewing of the alleged obscene performance. In addition

to considering all of the evidence presented, you are entitled to draw on your

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 a certain performance is obscene, you should

consider the entire performance as a whole and not part by part. You may

also consider whether the predominant theme and purpose of the

performance, when viewed as a whole and not part by part, is an appeal to

the prurient interest of the average adult person in your community.

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

performance, taken as a whole, lacks serious literary, artistic, political or

scientific value.4

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

performance5 that he intentionally disseminated. (It is not necessary that the

defendant intended or believed the performance 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 the defendant was a [person 18 years or older] [firm]

[corporation], that the defendant intentionally disseminated obscenity by

[[presenting] [directing] an obscene [play] [dance] [other performance]] (or)

[[participating directly in that portion of a [play] [dance] [other performance]

which makes it obscene], that the performance was obscene, that the

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

defendant did so knowingly 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.