N.C.P.I.—Crim. 238.21D

NOTE WELL: N.C. Gen. Stat. § 14-190.16(c) provides that a

mistake of age is not a defense to prosecution.

The defendant has been charged with first degree sexual exploitation of

a minor by creating material that appears to be an identifiable minor engaged

in sexual activity.

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

three things beyond a reasonable doubt:

First, that the defendant created for [sale] [pecuniary gain] material 1

[[created] [adapted] [modified]] to appear that a person engaged in sexual

activity. 2 (Define sexual activity, i.e., masturbation) is sexual activity.

Second, that person was an identifiable minor. 3

And Third, that the defendant knew the [character] [content] of the

material.

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

about the alleged date, the defendant created for [sale] [pecuniary gain]

material [[created] [adapted] [modified]] to appear that a person engaged in

sexual activity, that person was an identifiable minor, and that the defendant

knew the [character] [content] of the material, 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: N.C. Gen. Stat. § 14-190.16(b) states that “[i]n a

prosecution under this section, the trier of fact may infer that a

participant in sexual activity whom material through its title, text,

visual representations, or otherwise represents or depicts as a

minor is a minor.”