N.C.P.I.—Crim. 238.10B.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. [exhibiting] [offering to exhibit] [agreeing to exhibit]

b. [presenting] [offering to present] [agreeing to present]

c. [renting] [offering to rent] [agreeing to rent]

d. [selling]

e. [delivering]

f. [providing] [offering to provide] [agreeing to provide] any

1. [still (or) motion picture] [film] [filmstrip] [projection slide];

2. [sound recording] [sound tape] [sound track];

3. [matter or material of whatever form which is a representation,

embodiment, performance, or publication].

Third, that the [material] [performance] the defendant disseminated

was obscene. [Material] [A performance] is obscene when judged with

reference to ordinary adults:

a. The average person applying contemporary community standards

would find that the [material] [performance] depicts or describes sexual

conduct2 in a patently offensive way (define sexual conduct pertinent to the

case as set out by the statute). [Material] [A performance] 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] [performance] 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 [materials] [performances], 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, 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 certain [material] [performance] is obscene,

you should consider it as a whole and not part by part. You may also consider

whether the predominant theme and purpose, 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

[material] [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

[materials] [performances]5 that he intentionally disseminated. (It is not

necessary that the defendant intended or believed the [material]

[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 obscene material

by

a. [exhibiting] [offering to exhibit] [agreeing to exhibit]

b. [presenting] [offering to present] [agreeing to present]

c. [renting] [offering to rent] [agreeing to rent]

d. [selling]

e. [delivering]

f. [providing] [offering to provide] [agreeing to provide] any

1. [still (or) motion picture] [film] [filmstrip] [projection

slide];

2. [sound recording] [sound tape] [sound track];

3. [any matter or material of whatever form which is a

representation, embodiment, performance or

publication],

that the [material] [performance] disseminated by the defendant was

obscene, that the defendant knew the nature and content of the [material]

[performance], and that 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.