DISTRIBUTION OF PORNOGRAPHY -- ELEMENTS
No person may be convicted of distribution of pornography unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:
First, the defendant willfully;
[Second, wrote/composed/stereotyped/printed/photographed/ designed/copied/drew/engraved/painted/molded/cut/prepared/ published/sold/distributed/(kept for sale)/exhibited;
Third, any (obscene material)/(child pornography).]
[Second, made/prepared/cut/sold/gave/loaned/distributed/(kept for sale)/exhibited;
Third, any type of (obscene material)/(child pornography).]
You are instructed that the word "willfully," as used in these instructions, requires that you must find beyond a reasonable doubt from all the evidence in this case (either direct or circumstantial or both) that the defendant knew the nature and character of the contents of [specify alleged obscene material or child pornography]. It is not necessary that [Name of Defendant] knew the exact content or actually saw/read the [specify alleged obscene material or child pornography].
Statutory Authority: 21 O.S. Supp. 2000, § 1021(A)(3),(4).
The last paragraph is based on the instructions required under Hanf v. State, 1977 OK CR 41, ¶ 16, 560 P.2d 207, 211. The Oklahoma Court of Criminal Appeals held in the Hanf case that the trial courts must give the following scienter instruction in all future prosecutions under any obscenity statute in Oklahoma:
You are instructed that the words "knowingly" and/or "willfully," as used in these instructions, require that you must find beyond a reasonable doubt from all the evidence in this case (either direct or circumstantial or both) that the defendant knew the contents of the material introduced into evidence as State's Exhibit(s) No.(s) _____"
Id. Later, in Trim v. State, 1996 OK CR 1, 909 P.2d 841, the Court of Criminal Appeals affirmed a conviction under 21 O.S. 1991 § 1021(A)(3) for selling obscene magazines in which the trial court gave the following instructions after giving the Hanf instruction:
In this connection you are instructed that for the defendant to have wilfully sold an obscene magazine(s) he must have knowledge of the character of the content of the magazine alleged to be obscene.
It is not necessary that the Defendant be shown to have known the exact content or to have actually seen or read the particular materials at issue, but only that he knew the nature and character of the materials distributed. It does not matter that the Defendant did not know or believe the materials were obscene.
The Court of Criminal Appeals ruled that these instructions were proper and in harmony with Hanf. Id. ¶ 15, 909 P.2d at 844. Trim was followed in Davis v. State, 1996 OK CR 15, 916 P.2d 251, in which the Court of Criminal Appeals held "In order to prove scienter, the prosecution need only show the accused knew the nature and character of what he was selling." Id. ¶ 33, 916 P.2d at 260.
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