OBSCENITY
FOR PERSONS UNDER 18
(PROMOTING
OBSCENE MATERIAL)
N.J.S.A. 2C:34-3b(1) model jury charge
Defendant
is charged in count of the indictment with promoting obscene
material to [a] minor[s].
[READ COUNT OF INDICTMENT]
The statute under
which this charge is based reads in pertinent part:
A person who
knowingly sells, distributes, rents or exhibits to a person under 18 years of
age obscene material 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 defendant knowingly [sold] [distributed] [rented] [or]
[exhibited] material;
2.
That the material defendant [sold] [distributed]
[rented] [or] [exhibited] was obscene material;
3.
That defendant [sold] [distributed] [rented] [or]
[exhibited] obscene material to a person under 18 years of age; and
4.
That defendant knew the character and content of the
obscene material [CHARGE IF APPROPRIATE:
or should have known the character and content of the obscene material].
The
first element that the State must prove beyond a reasonable doubt is that
defendant knowingly [sold] [distributed] [rented] [or] [exhibited] material.
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 would
cause a result. “Knowing,” “with
knowledge,” or equivalent terms have the same meaning.
Knowledge
is a condition of the mind. It 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 the
surrounding circumstances established by the evidence.[1]
[Sold]
[distributed] [and] [rented] [has its] [have their] common ordinary meaning.
[Exhibited means the sale of admission to view obscene material.][2]
The
second element that the State must prove beyond a reasonable doubt is that the
material defendant [sold] [distributed] [rented] [or] [exhibited] was obscene
material.
Obscene
material means any description, narrative account, display, depiction of a
specified anatomical area or specified sexual activity contained in, or
consisting of, a picture or other representation, publication, sound recording,
live performance or film, which by means of posing, composition, format or
animated sensual details, emits sensuality with sufficient impact to
concentrate prurient interest on the area or activity.[3]
The
third element that the State must prove beyond a reasonable doubt is that the
person to whom defendant [sold] [distributed] [rented] [or] [exhibited] the
obscene material was under 18 years of age.
The
fourth element that the State must prove beyond a reasonable doubt is that
defendant had knowledge of the character and content of the material [or failed
to exercise reasonable inspection which would have disclosed its character or
content.] [4]
The
requisite knowledge with regard to the character and content of the material
and of the age of the person may be inferred when an actor [sells] [distributes]
[rents] [or] [exhibits] obscene material to a person under 18 years of age.
An
inference is a deduction of fact that may be drawn logically and reasonably
from another fact or group of facts established by the evidence. Whether or not an inference should be drawn
is for you to decide using your own common sense, knowledge and everyday
experience. Ask yourselves, is it
probable, logical and reasonable?
However, you are never required or compelled to draw an inference. You alone decide whether the facts and
circumstances shown by the evidence support an inference and you are always
free to draw or not to draw an inference. If you draw an inference, you should weigh it
in connection with all the other evidence in the case, keeping in mind that the
burden of proof is upon the State to prove all the elements of the crime beyond
a reasonable doubt.
If
after a consideration of all the evidence, you are convinced beyond a
reasonable doubt that the State has proved all of the elements of the crime
then your verdict must be guilty.
If, however, after a consideration
of all the evidence, you find that the State has failed to prove each and every
element of the crime beyond a reasonable doubt, your verdict must be not
guilty.
[CHARGE
WHERE APPROPRIATE]
It
is an affirmative defense to a prosecution of this offense, which the defendant
must prove by a preponderance of the evidence, that:
(a) The
person under age 18 falsely represented in or by writing that he/she
was age 18 or over; and[5]
(b)
The person’s appearance was such that
an individual of ordinary prudence would believe him/her to be age 18 or over;
and
(c) The
sale, distribution, rental or exhibition to the person was made in good faith
relying upon such written representation and appearance and in the reasonable
belief that he/she was actually age 18 or over.
The
term “preponderance of the evidence” means that amount of evidence that causes
you to conclude that the affirmative defense is probably true. To prove an affirmative defense by the
preponderance of the evidence, the defendant must convince you that it is more probable
than not.
If
the evidence on a particular issue is equally balanced, that issue has not been
proven by a preponderance of the evidence.
Therefore, the party having the burden of proving that issue has failed
with respect to that particular issue.
Keep
in mind, however, that although the burden rests upon the defendant to
establish the affirmative defense by a preponderance of the credible evidence,
the burden to establish the defendant guilty of the offense charged here beyond
a reasonable doubt is always on the State, and that burden never shifts.
If
after a consideration of all the evidence, you find that the State has not
proven beyond a reasonable doubt all the elements of the offense, then you must
find the defendant not guilty of promoting obscene material.
If
after a consideration of all the evidence, you find that the State has proven
beyond a reasonable doubt all the elements of the offense, and if you also find
that the defendant has not established the affirmative defense by a preponderance
of the evidence, then you must find the defendant guilty of promoting obscene
material.
If
after a consideration of all the evidence, you find that the State has proven
beyond a reasonable doubt all the elements of the offense, and if you also find
that the defendant has established the affirmative defense by a preponderance
of the evidence, then you must find the defendant not guilty of promoting
obscene material.
[1] N.J.S.A.
2C:34-3a(5) defines knowingly as: “(a) Having knowledge of the character and
content of the material or film described herein; or (b) Having failed to
exercise reasonable inspection which would disclose its character and
content.” The definition under
subsection (b) is tantamount to a negligent mens rea and it creates the
possibility that persons charged with violating N.J.S.A. 2C:34-3b(1)
and/or N.J.S.A. 34-3c(1) can be convicted of a third-degree crime based
solely on the (b) definition. Therefore,
the Committee has imported the culpable mental state of knowingly, as defined
in N.J.S.A. 2C:2-2b(2), for offenses charged under N.J.S.A. 2C:34-3b(1).
[3] N.J.S.A.
2C:34-3a(1).
[4] N.J.S.A.
2C:34-3a(5). The Committee wishes to
point out, the statute, as codified, has a self-contained definition of
“knowingly,” which states a person may be considered to have acted “knowingly”
for this statute if the defendant had knowledge of the character and content of
the material or film alleged to be obscene, N.J.S.A. 2C:34-3(a)(5)(a), or
if the defendant failed to “exercise reasonable inspection which would disclose
its material.” N.J.S.A.
2C:34-3(a)(5)(b). This definition of “knowingly” is broader than the definition
of “knowingly” found at N.J.S.A. 2C:2-2(b)(2).
If subsection (b) is relied upon, the court should
make sure that appropriate cautionary instructions are given to the jury as to
the particular meaning of “knowingly” that the jury should use in the context
of the case.
[5] See
State v. Blecker, 155 N.J. Super. 93, 102 (App. Div. 1978)
(holding that a similar statutory defense within the predecessor statute, N.J.S.A.
2A:115-1.8, required that “a defendant must establish `not some but all of the
factual elements enumerated in the enactment relating thereto.’” Cf. Sportsman
300 v. Nutley Bd. Of Comm’rs, 42 N.J. Super. 488, 493 (App. Div.
1956).)