OBSCENITY FOR
PERSONS UNDER 18
(PROMOTING OBSCENE
MATERIAL)
N.J.S.A. 2C:34-3b(2) 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 shows obscene material to a person under 18 years of age with the
knowledge or purpose to arouse, gratify or stimulate himself or another is
guilty of a crime ... if the person showing the obscene material is at least
four years older than the person under 18 years of age viewing the material.
In order to
convict defendant of this charge, the State must prove the following elements
beyond a reasonable doubt:
1. That defendant knowingly showed material;
2. That the material defendant showed was
obscene;
3.
That defendant showed the obscene
material to a person under 18 years of age;
4. That
defendant was at least 4 years older than _________ ( NAME OF ALLEGED
VICTIM);
5. 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]; and
6. That
defendant showed the obscene material with the knowledge or purpose to arouse,
gratify or stimulate himself/herself
or another.
The
first element that the State must prove beyond a reasonable doubt is that
defendant knowingly showed 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.
Showed
means defendant either caused or allowed the material to be seen.[1]
The
second element that the State must prove beyond a reasonable doubt is that the
material shown 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.[2]
The
third element that the State must prove beyond a reasonable doubt is that the
person to whom defendant showed the obscene material was under 18 years of age.
The
fourth element the State must prove beyond a reasonable doubt is that defendant
is at least 4 years older than __________________________(NAME OF ALLEGED VICTIM).
The
fifth element that the State must prove beyond a reasonable doubt is that
defendant had knowledge of the character and content of the material or film, [or
failed to exercise reasonable inspection which would have disclosed its
character or content]. [3]
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 shows 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.
The sixth element that the State must prove
beyond a reasonable doubt is that defendant showed the obscene material with
the knowledge or purpose to arouse, gratify or stimulate himself/herself or another.
I
have already defined knowingly. The same
definition applies to this element of the offense as well.
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 or hopes that they exist. “With
purpose,” “designed,” “with design” or equivalent terms have the same
meaning.
As
in the case of knowledge, purpose 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.
If after a
consideration of all the evidence, you are convinced beyond a reasonable doubt,
that the State has proven 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[4]
(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
showing 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(7).
[2] N.J.S.A.
2C:34-3a(1).
[3] 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.
[4] 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).)