OBSCENITY
FOR PERSONS UNDER 18
(ADMITTING TO EXHIBITION OF AN OBSCENE
FILM)
N.J.S.A.
2C:34-3c(1) model jury charge
Defendant is
charged in count of the indictment with admitting [a] minor[s]
to the exhibition of an obscene film.
[READ COUNT OF INDICTMENT]
The statute under
which this charge is based reads in pertinent part:
Any person who
knowingly admits a person under 18 years of age to a theater then exhibiting an
obscene film 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 admitted a
person to the exhibition of a film;
2. That the film was an obscene film;
3. That the person[s] [was] [were] under 18
years of age; and
4.
That defendant knew or should have
known the character and content of the obscene film.
The
first element that the State must prove beyond a reasonable doubt is that
defendant knowingly admitted a person to the exhibition of a film. 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]
The
second element that the State must prove beyond a reasonable doubt is that the
film was an obscene film.
Obscene
film means any motion picture film or preview or trailer to a film, not
including newsreels portraying actual current events or pictorial news of the
day, in which a scene, taken by itself:
(a) Depicts
a specified anatomical area or specified sexual activity, or the simulation of
a specified sexual activity, or verbalization concerning a specified sexual
activity; and
(b)
Emits sensuality sufficient, in terms
of the duration and impact of the depiction, to appeal to prurient interest.[2]
“Specified
anatomical area” means:
(a)
Less than completely and opaquely
covered human genitals, pubic region, buttock or female breasts below a point
immediately above the top of the areola; or
“Specified sexual
activity” means:
(a) Human genitals in a state of sexual
stimulation or arousal; or
(b)
Any act of human masturbation,
sexual intercourse or deviate sexual intercourse; or
(c)
Fondling or other erotic touching
of covered or uncovered human genitals, pubic region, buttock or female breast.[4]
The
third element that the State must prove beyond a reasonable doubt is that the
person[s] whom defendant admitted to the exhibition of an obscene film was under
18 years of age.
The
fourth element that the State must prove beyond a reasonable doubt is that
defendant either had knowledge of the character and content of the film, or
failed to exercise reasonable inspection which would have disclosed its
character or content.
The
requisite knowledge with regard to the character and content of the film and of
the age of the person may be inferred in the case of an actor who admits to a
film, obscene for a person under 18 years of age, a person who is under 18
years of age.[5]
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 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
AFFIRMATIVE DEFENSE[S] RAISED]
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
(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
admission of 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. [6]
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, a party 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.[7]
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.
[CHARGE WHERE
APPROPRIATE]
It
is [also] a defense to a prosecution of this offense, which the State must
disprove beyond a reasonable doubt, that the defendant was an employee in a
motion picture theater who had no financial interest in that motion picture
other than his/her
wages and had no decision-making authority or responsibility with respect to
the selection of the motion picture show which was exhibited.[8]
If
after a consideration of all the evidence, you find that the State has not
proven beyond a reasonable doubt any of the elements of the offense, then you
must find the defendant not guilty of admitting [a] person[s] under the age of
18 to the exhibition of an obscene film.
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
[CHOOSE APPROPRIATE OR BOTH] [that the defendant has not established by
a preponderance of the evidence the affirmative defense relating to the age of
the person admitted to the exhibition of an obscene film] [and] [the
State has disproved beyond a reasonable doubt that defendant was merely an
employee of the theater without financial interest and decision making
authority], then you must find the
defendant guilty of admitting [a] person[s] under the age of 18 to the
exhibition of an obscene film.
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
[CHOOSE APPROPRIATE OR BOTH] [that
the defendant has established by a preponderance of the evidence the
affirmative defense relating to the age of the person admitted to the
exhibition of an obscene film], [or]
[that
the State has
not disproved beyond a reasonable doubt that defendant was merely an employee
of the theater without financial interest and decision making authority], then you must find the defendant not
guilty of admitting [a] person[s] under the age of 18 to the exhibition of an
obscene film.
[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 2C:34-3b(1) and/or 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 2C:34-3b(1) and 34-3c(1).
[6] 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).”)
[8] N.J.S.A.
2C:34-3e(2)