N.C.P.I.—Crim. 238.12

The defendant has been charged with [advertising] [promoting] the sale

of material [represented] [held out] by him as obscene.

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 [advertised] [promoted] the sale of

material.

And Third, that the defendant [represented] [held out] the material as

obscene.1 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 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 as [advertised] [promoted] is

obscene, you should consider the entire material 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

[advertisement] [promotion] of the material taken as a whole lacks serious

literary, artistic, political or scientific value.4

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 [advertised] [promoted] the sale of

material, and that the defendant [represented] [held out] that material as

obscene, 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.