N.C.P.I.—Crim. 238.11

The defendant has been charged with [creating] [buying] [procuring]

[possessing] obscene material, with the intent to disseminate.

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

three things beyond a reasonable doubt:

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

[corporation].

Second, that the defendant knowingly [created] [bought] [procured]

[possessed] obscene material.

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

statute1). 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.2 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, 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 is obscene, you should consider

the entire (describe material, e.g., "film") 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 your 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.3

And Third, that the defendant acted with the purpose and intent4 of

disseminating the obscene material unlawfully, and that the defendant knew

the nature and content of the material.5 (It is not necessary that he intended

or believed the material to be obscene.)

Material is disseminated 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. [presenting] [directing] a [play] [dance] [performance] or

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

[performance] which makes it obscene]

e. [publishing] [exhibiting] or [making available]

f. 1. [exhibiting] [offering to exhibit] [agreeing to exhibit]

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

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

4. [selling] [offering to sell] [agreeing to sell]

5. [delivering] [offering to deliver] [agreeing to deliver]

6. [providing] [offering to provide] [agreeing to provide]

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

(or) motion picture] [film] [filmstrip] [projection slide] [sound recording]

[sound tape] [sound track].

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 knowingly [created] [bought] [procured]

[possessed] obscene material and that the defendant acted intentionally with

the purpose of disseminating such obscene material unlawfully, 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.

NOTE WELL: Simple possession or purchase of obscenity does not

violate the statute. A violation occurs when the possession or the

purchase is with the intent and for the purpose of disseminating

obscenity.