State v. Cotton
790 P.2d 1050 (1990)
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Rule of Law:
Under the New Mexico criminal solicitation statute, the offense is not complete unless the solicitation is actually communicated to the person intended to be solicited or to an intermediary. An uncommunicated solicitation may constitute an attempt to solicit, but not the completed crime itself.
Facts:
- While in jail awaiting trial on charges involving his stepdaughter, the defendant sought to prevent her from testifying against him.
- The defendant wrote a letter to his wife, asking her to persuade his stepdaughter not to testify or to give her money to leave the state so she would be unavailable for trial.
- He gave the letter to a cellmate, James Dobbs, to have a stamp put on it for mailing.
- Unbeknownst to the defendant, Dobbs removed the letter from the envelope, gave the original to law enforcement, and returned a sealed envelope with a blank sheet of paper to the defendant.
- The defendant's wife never received this first letter.
- The defendant later wrote a second letter containing similar requests and threats regarding the stepdaughter's testimony.
- This second letter was never mailed and was seized from the defendant's car by law enforcement officers upon his re-arrest.
- It is undisputed that neither letter was ever received or read by the defendant's wife.
Procedural Posture:
- The defendant was charged in a New Mexico trial court with two counts of criminal solicitation and one count of conspiracy.
- The state dismissed a third count of criminal solicitation prior to trial.
- At trial, the court granted a directed verdict in favor of the defendant on the conspiracy charge.
- A jury found the defendant guilty on the two remaining counts of criminal solicitation.
- The defendant appealed his convictions to the New Mexico Court of Appeals, the state's intermediate appellate court.
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Issue:
Does a defendant commit the crime of criminal solicitation under New Mexico law if the written solicitation is intercepted and never communicated to the intended recipient?
Opinions:
Majority - Donnelly, J.
No. The crime of criminal solicitation requires proof that the defendant communicated the solicitation to the person intended to be solicited. The New Mexico legislature, in adopting its solicitation statute, significantly omitted the section of the Model Penal Code which provides that it is immaterial if the actor fails to communicate with the person being solicited. This omission indicates a legislative intent to require actual communication for the offense to be complete. The state's argument that the statute's phrase 'otherwise attempts to promote or facilitate' covers uncommunicated solicitations is unpersuasive. While the defendant's actions of writing the letters constitute evidence of his intent, they are insufficient to prove the element of communication required for the completed offense. Where a solicitation is not communicated, the proper charge may be attempted criminal solicitation, not the completed crime of solicitation.
Analysis:
This decision clarifies the actus reus for criminal solicitation in New Mexico, establishing a bright-line rule that the solicitation must be communicated to be a completed offense. By focusing on the legislature's omission of a key provision from the Model Penal Code, the court reinforces the principle that legislative intent, as derived from statutory construction, is paramount. This precedent distinguishes New Mexico's law from jurisdictions that have adopted the Model Penal Code's broader definition. Consequently, prosecutors in New Mexico cannot sustain a solicitation conviction based on an intercepted communication and must instead pursue charges for attempted solicitation in such cases.
