N.J. Model Criminal Jury Charge, N.J.S.A. 2C:24-4b(5)(a)(ii)

Approved 9/8/14

ENDANGERING THE WELFARE OF A CHILD

(PORNOGRAPHY)

(Applies to crimes committed after August 14, 2013)

N.J.S.A. 2C:24-4b(5)(a)(ii)

Defendant is charged in count ______ of the indictment with endangering the welfare of a

child.

[READ COUNT OF INDICTMENT]

The statute under which this charge is based reads in pertinent part:

A person who knowingly possesses an item depicting the sexual

exploitation or abuse of a child with the intent to distribute that item

is guilty of a crime.

In order to convict defendant of this charge, the State must prove the following elements

beyond a reasonable doubt:

1. That S- is an item depicting the sexual exploitation or abuse of a child.

2. That defendant knowingly possessed the item.

3. That when defendant knowingly possessed the item, he/she had the intent

to distribute it.

A child means any person under the age of 18 years of age. The State must prove beyond a

reasonable doubt that the child[ren] was [were] under the age of 18 at the time of the offense. A

person who is depicted as or presents the appearance of being under the age of 18 in any photograph,

film, videotape, computer program or file, video game or any other reproduction or reconstruction

may be inferred to be under the age of 18.1

It is not a defense that the defendant did not know that the child[ren] was [were] under the

age of 18 or that the defendant believed that the child[ren] was [were] 18 years old or older, even if

such a mistaken belief was reasonable.

2

[USE IF DEFENDANT ASSERTS “VIRTUAL CHILD” DEFENSE]

A child means any person under the age of 18 years of age. The State must prove beyond a

reasonable doubt that the [child][children] [was] [were] under the age of 18 at the time of the

offense. A person who is depicted as or presents the appearance of being under the age of 18 in any

1 The statute states that there is a rebuttable presumption that the child is under the age of 18, but it should be

charged as an inference. N.J.R.E. 303.

ENDANGERING THE WELFARE OF A CHILD (PORNOGRAPHY)

N.J.S.A. 2C:24-4b(5)(a)(ii)

photograph, film, videotape, computer program or file, video game or any other reproduction or

reconstruction may be inferred to be under the age of 18.3 Moreover, the State must prove beyond a

reasonable doubt that the images in question were of [a] real [child] [children] and that defendant

knew that the images were of [a] real [child][children].4

A person who is depicted as or presents the appearance of being under the age of 18 in any

photograph, film, videotape, computer program or file, video game or any other reproduction or

reconstruction may be inferred to be under the age of 18.5 It is not a defense that the defendant did

not know that the [child][children] [was] [were] under the age of 18 or that the defendant believed

that the [child][children] [was] [were] 18 years old or older, even if such a mistaken belief was

reasonable.

6

[RESUME MAIN CHARGE]

The second element that the State must prove beyond a reasonable doubt is that defendant

knowingly possessed the item depicting the sexual exploitation or abuse of a child.

The word “possess” means a knowing, intentional control of a designated thing, accompanied

by a knowledge of its character. In other words, to “possess” within the meaning of the law, the

defendant must knowingly procure or receive the item possessed or be aware of his control thereof

for a sufficient period of time to have been able to relinquish hi/her control if he/she chose to do so.

Possession includes receiving, viewing or having under one’s control through any means, including

the Internet. The Internet means the international computer network of both federal and non-federal

interoperable packet switched data networks.

7

A person acts knowingly with respect to the nature of his/her conduct or the attendant

circumstances if he/she is aware that the conduct is of that nature or that such circumstances exist or

the person is aware of a high probability of their existence. A person acts knowingly with respect to

a result of the conduct if he/she is aware that it is practically certain that the conduct will cause a

result. “Knowing,” “with knowledge,” or equivalent terms have the same meaning.

2 N.J.S.A. 2C:24-4b(6). See State v. Perez, 177 N.J. 540, 555 (2003).

3 The statute states that there is a rebuttable presumption that the child is under the age of 18, but it

should be charged as an inference. N.J.R.E. 303.

4 State v. May, 362 N.J. Super. 572, 588 (App. Div. 2003).

5 The statute states that there is a rebuttable presumption that the child is under the age of 18, but it

should be charged as an inference. N.J.R.E. 303.

6 N.J.S.A. 2C:24-4b(6). See State v. Perez, 177 N.J. 540, 555 (2003).

7 See N.J.S.A. 2C:24-4b(1).

ENDANGERING THE WELFARE OF A CHILD (PORNOGRAPHY)

N.J.S.A. 2C:24-4b(5)(a)(ii)

A person is in actual possession of a particular article or thing when he/she knows what it is:

that is, he/she has knowledge of its character. A person who, with knowledge of its character,

knowingly has direct physical control over a thing, at a given time, is in actual possession of it.

Constructive possession means possession in which the possessor does not physically have

the item on his or her person but is aware that the item is present and is able to and has the intention

to exercise control over it. So, someone who has knowledge of the character of an item and

knowingly has both the power and the intention at a given time to exercise control over it, either

directly or through another person or persons, is then in constructive possession of that item.

Possession may be sole or joint. If one person alone has actual or constructive possession of

an item, possession is sole. If two or more persons share actual or constructive knowing possession

of an item, possession is joint.

An item depicting the sexual exploitation or abuse of a child means any photograph, film,

video, an electronic, electromagnetic or digital recording, an image stored or maintained in a

computer program or file or in a portion of a file, or any other reproduction or reconstruction which

depicts a child engaging in a prohibited sexual act or in the simulation of such an act.

8 Here, the

State alleges that the item was a (list item).

A prohibited sexual act means:

[CHOOSE APPROPRIATE]

sexual intercourse, which is penetration, however slight, of the vagina by a penis.9

anal intercourse, which is penetration, however slight, into the anus.10

masturbation, which is stimulation of the genitals.11

bestiality, which is a sexual connection between a person and an animal.12

sadism, which is sexual gratification dependent largely on the infliction of pain on others.13

masochism, which is sexual gratification dependent largely on the infliction of physical or mental

abuse on the person.14

8 See N.J.S.A. 2C:24-4b(1).

9 Hice v. State, 593 S.W.2d 57, 64 (Ark. 1980) and cases cited there.

10 State v. Gallagher, 286 N.J. Super. 1, 13 (App. Div. 1995), certif. denied, 146 N.J. 569 (1996).

11 People v. Lamb, 90 Cal. Rptr.2d 565, 576 (Ct. App. 1999).

12 State v. Bonynge, 450 N.W.2d 331, 338 (Minn. Ct. App. 1990).

13 Ex Parte Anderson, 902 S.W.2d 695, 700 (Tex. Ct. App. 1995).

14 Id. at 700.

ENDANGERING THE WELFARE OF A CHILD (PORNOGRAPHY)

N.J.S.A. 2C:24-4b(5)(a)(ii)

fellatio, which is oral contact with the male sexual organ.15

cunnilingus, which is oral contact with the female sex organ.16

nudity, if depicted for the purpose of sexual stimulation or gratification of any person who may view

such depiction.

vaginal intercourse, which is the penetration of the vagina, or [where appropriate] of the space

between the labia majora or outer lips of the vulva.17

sexual penetration, which is insertion of the hand, finger or object into the anus or vagina, either by

the defendant or on the defendant’s instructions.18

sexual contact, which is an intentional touching by the victim or defendant, either directly or through

clothing, of the victim’s or defendant’s intimate parts for the purpose of degrading or humiliating the

victim or sexually arousing or sexually gratifying the defendant.

19

The third element that the State must prove beyond a reasonable doubt is that when defendant

knowingly possessed the item, he/she had the intent to distribute it.

Distribute means to sell, or to manufacture, give, provide, lend, trade, mail, deliver, publish,

circulate, disseminate, present, exhibit, display, share, advertise, offer, or make available via the

Internet or by any other means, whether for pecuniary gain or not.

20 “Intent" means a purpose to do

something, a resolution to do a particular act or accomplish a certain thing. A person acts purposely

with respect to the nature of his/her conduct or a result thereof if it is his/her conscious object to

engage in conduct of that nature or to cause such a result. A person acts purposely with respect to

attendant circumstances if he/she is aware of the existence of such circumstances or he/she believes

15 State in the Interest of S.M., 284 N.J. Super. 611, 616-19 (App. Div. 1995).

16 State v. Fraction, 206 N.J. Super. 532, 535-36 (App. Div. 1985), certif. denied, 104 N.J. 434 (1986).

17 See State v. J.A., 337 N.J. Super. 114 (App. Div. 2001). The Appellate Division upheld the charge given

by the trial court in that case which included the following language which can be used if the circumstances of

the specific case are appropriate: “This means that if you find from all of the evidence presented beyond a

reasonable doubt that there was [penile] penetration to the outer area of the vaginal opening, what is commonly

referred to as the vaginal lips, that is sufficient to establish penetration under the law.”

18 N.J.S.A. 2C:24-4b(1)(j) refers to “[a]ny act of sexual penetration or sexual contact as defined in N.J.S.

2C:14-1.” Every other act of “penetration” referred to in N.J.S.A. 2C:14-1, except for vaginal intercourse, is

set forth in the definition of prohibited sexual act.

19 N.J.S.A. 2C:14-1d. See State v. J.A., 337 N.J. Super. 114 (App. Div. 2001). The Appellate Division upheld

the charge given by the trial court in that case which included the following language which can be used if the

circumstances of the specific case are appropriate: “This means that if you find from all of the evidence

presented beyond a reasonable doubt that there was [penile] penetration to the outer area of the vaginal

opening, what is commonly referred to as the vaginal lips, that is sufficient to establish penetration under the

law.”

ENDANGERING THE WELFARE OF A CHILD (PORNOGRAPHY)

N.J.S.A. 2C:24-4b(5)(a)(ii)

or hopes that they exist. "With purpose," "designed," "with design" or equivalent terms have the

same meaning.

Knowledge, purpose and intent are conditions of the mind. They cannot be seen and can only

be determined by inference from defendant’s conduct, words or acts. A state of mind is rarely

susceptible of direct proof but must ordinarily be inferred from the facts. Therefore, it is not

necessary that the State produce witnesses to testify that an accused said that he/she had a certain

state of mind when he/she did a particular thing. It is within your power to find that such proof has

been furnished beyond a reasonable doubt by inference which may arise from the nature of his/her

acts and conduct and from all he/she said and did at the particular time and place and from all

surrounding circumstances established by the evidence.

If you find that the State has proven every element beyond a reasonable doubt, then you must

find defendant guilty. If you find that the State has failed to prove any element beyond a reasonable

doubt, then you must find defendant not guilty.

[CHARGE THE FOLLOWING IF THE STATE ALLEGES THAT THERE WERE 25 OR

MORE ITEMS DEPICTING THE SEXUAL EXPLOITATION OR ABUSE OF A CHILD]

If you have found defendant guilty of the offense, you must go on to decide whether the State

has proven beyond a reasonable doubt that there were 25 items or more depicting the sexual

exploitation or abuse of a child. Each depiction of the sexual exploitation or abuse of a child is

considered a separate item, whether the act or acts constituting the violation occurred at the same

time or at different times

21 [so long as each individual act was committed during the statute of

limitations].

If you find that the State has proven beyond a reasonable doubt that there were 25 or more

items depicting the sexual exploitation or abuse of a child, then you must answer “yes” on the verdict

sheet. If you find that the State has failed to prove beyond a reasonable doubt that there were 25 or

more items or more depicting the sexual exploitation or abuse of a child, then you must answer “no”

on the verdict sheet.

20 See N.J.S.A. 2C:24-4b(1).

21 The statute requires that these acts for aggr egation purposes occur within the applicable statute of

limitations. If this is an issue, the jury charge should indicate that the jury is to find that the acts occurred

within a specified period of time.