T.P.I. -- CRIM. 11.13

RECORDED DEVICES

            Any person who commits the offense of [manufacturing] [transferring] [recording] [storing] [advertising] [selling] [renting] [transporting] a recorded device containing a live performance is guilty of a crime.

            For you to find the defendant guilty of this offense, the state must have proven beyond a reasonable doubt the existence of the following essential elements:¹

[Part A:

            (1)  that the defendant knowingly [manufactured] [transferred] [recorded]

                   [stored on any recorded device] a live performance;

and

            (2)  that the defendant had the intent to sell the [manufactured]

                   [transferred] [stored] live performance for [commercial advantage]

                   [financial gain];

and

            (3)  that the defendant knew the live performance was [recorded] [stored]

                   without the consent of the owner of the live performance.]

or

[Part B:

            (1)  that the defendant knowingly [advertised] [sold] [rented] [transported]

                   [possessed with the intent to sell, rent or transport] a recorded device

                   containing a live performance;

and

            (2)  that the defendant did so for [commercial advantage] [private financial

                   gain];

and

            (3)  that the defendant knew the live performance had been [recorded]

                   [stored] without the consent of the owner of the live performance.]

            "Knowingly" means that a person acts knowingly with respect to the conduct or circumstances surrounding the conduct when the person is aware of the nature of the conduct or that the circumstances exist.  A person acts knowingly with respect to a result of the person's conduct when the person is aware that the conduct is reasonably certain to cause the result.²

            The requirement of "knowingly" is also established if it is shown that the defendant acted intentionally.³

            "Intentionally" means that a person acts intentionally with respect to the nature of the conduct or to a result of the conduct when it is the person's conscious objective or desire to engage in the conduct or cause the result.⁴

            "Recorded device" means the tangible medium upon which sounds and/or images are recorded or otherwise stored.  "Recorded device" includes any [original phonograph record] [disc] [tape] [audio] [video cassette] [wire] [film] [other medium now known or later developed on which sounds and/or images are or can be recorded or otherwise stored] [copy or reproduction which duplicates, in whole or in part, the original].⁵

            "Live performance" means the recitation, rendering or playing of a series of images and/or musical, spoken or other sounds, in any audible sequence.⁶

            "Owner" means a person, other than the defendant, who has possession  of or any interest other than a mortgage, deed of trust or security interest in property, even though that possession or interest is unlawful and without whose consent the defendant has no authority to exercise control over the property.⁷

            [The trial judge should now instruct the jury with respect to fixing the value of the property. See T.P.I. -- CRIM. 11.03 (Fixing value).]

FOOTNOTES

 1.  Tenn. Code Ann. § 39-14-139(c).

 2.  Tenn. Code Ann. § 39-11-106(a)(20).

 3.  Tenn. Code Ann. § 39-11-301(a)(2).

 4.  Tenn. Code Ann. § 39-11-106(a)(18).

 5.  Tenn. Code Ann. § 39-11-106(a)(32).

 6.  Tenn. Code Ann. § 39-14-139(c)(3).

 7.  Tenn. Code Ann. § 39-11-106(a)(26).

COMMENTS

            1.  A violation of recorded devices is punished as theft under Tenn. Code Ann. § 39-14-105.  Tenn. Code Ann. § 39-14-139(e).  See comment to T.P.I. -- CRIM. 11.01 (theft of property).  Inventory possessed or transactions in violation of this section shall be aggregated for purposes of valuation.  Tenn. Code Ann. § 39-14-139(b).

            2.  If consent of the owner is an issue, the trial judge may wish to charge the definition of "effective consent",  Tenn. Code Ann. § 39-11-106(a)(9).