Question: Did He Solicit His Wife to Bribe or Intimidate a Witness?

HISTORY: James Cotton, the defendant, was convicted in the District Court, Eddy County, of criminal solicitation, and he appealed. The Court of Appeals reversed and remanded. DONNELLY, J. FACTS In 1986, the defendant, together with his wife Gail, five children, and a stepdaughter, moved to New Mexico. A few months later, the defendant's wife and children returned to Indiana. Shortly thereafter, the defendant's fourteenyear-old stepdaughter moved back to New Mexico to reside with him. In 1987, the Department of Human Services investigated allegations of misconduct involving the defendant and his stepdaughter. Subsequently, the District Court issued an order awarding legal and physical custody of the stepdaughter to the Department of Human Services, and she was placed in a residential treatment facility in Albuquerque. In May 1987, the defendant was arrested and charged with multiple counts of criminal sexual penetration of a minor and criminal sexual contact of a minor. While in the Eddy County Jail awaiting trial on those charges the defendant discussed with his cellmate, James Dobbs, and Danny Ryan, another inmate, his desire to persuade his stepdaughter not to testify against him. During his incarceration the defendant wrote numerous letters to his wife; in several of his letters he discussed his strategy for defending against the pending criminal charges. On September 23, 1987, the defendant addressed a letter to his wife.

In that letter he requested that she assist him in defending against the pending criminal charges by persuading his stepdaughter not to testify at his trial. The letter also urged his wife to contact the stepdaughter and influence her to return to Indiana or to give the stepdaughter money to leave the state so that she would be unavailable to testify. After writing this letter the defendant gave it to Dobbs and asked him to obtain a stamp for it so that it could be mailed later. Unknown to the defendant, Dobbs removed the letter from the envelope, replaced it with a blank sheet of paper, and returned the sealed stamped envelope to him. Dobbs gave the original letter written by the defendant to law enforcement authorities, and it is undisputed that the defendant's original letter was never in fact mailed nor received by the defendant's wife. On September 24 and 26, 1987, the defendant composed another letter to his wife. He began the letter on September 24 and continued it on September 26, 1987. In this letter the defendant wrote that he had revised his plans and that this letter superseded his previous two letters.

The letter stated that he was arranging to be released on bond; that his wife should forget about his stepdaughter for a while and not come to New Mexico; that the defendant would request that the Court permit him to return to Indiana to obtain employment; that his wife should try to arrange for his stepdaughter to visit her in Indiana for Christmas; and that his wife should try to talk the stepdaughter out of testifying or to talk her into testifying favorably for the defendant. The defendant also said in the letter that his wife should "warn" his stepdaughter that if she did testify for the state "it won't be nice and she'll make [New Mexico] news," and that, if the stepdaughter was not available to testify, the prosecutor would have to drop the charges against the defendant. The defendant secured his release on bail on September 28, 1987, but approximately twenty-four hours later was rearrested on charges of criminal solicitation. At the time the defendant was rearrested, law enforcement officers discovered and seized from the defendant's car two personal calendars and other documents written by the defendant. It is also undisputed that the second letter was never mailed to the defendant's wife. Following a jury trial, the defendant was convicted on two counts of criminal solicitation. A third count of criminal solicitation was dismissed by the state prior to trial. OPINION The charges of criminal solicitation were alleged to have occurred on or about September 23, 1987. Count I of the amended criminal information alleged that defendant committed the offense of criminal solicitation by soliciting another person "to engage in conduct constituting a felony, to-wit: Bribery or Intimidation of a Witness (contrary to Sec. 30-24-3, NMSA 1978)."

Count II alleged that defendant committed the offense of criminal solicitation by soliciting another "to engage in conduct constituting a felony, to-wit: Custodial Interference (contrary to Sec. 30-4-4, NMSA 1978)." The offense of criminal solicitation as provided in NMSA 1978, Section 30-28-3 (Repl. Pamp. 1984), is defined in applicable part as follows: A. Except as to bona fide acts of persons authorized by law to investigate and detect the commission of offenses by others, a person is guilty of criminal solicitation if, with the intent that another person engage in conduct constituting a felony, he solicits, commands, requests, induces, employs or otherwise attempts to promote or facilitate another person to engage in conduct constituting a felony within or without the state. Defendant contends that the record fails to contain the requisite evidence to support the charges of criminal solicitation against him because defendant's wife, the intended solicitee, never received the two letters. In reviewing this position, the focus of our inquiry necessarily turns on whether or not the record contains proper evidence sufficient to establish each element of the alleged offenses of criminal solicitation beyond a reasonable doubt. On appeal, we view the testimony and evidence in the light most favorable to the state, resolving all conflicts therein and indulging all permissible inferences therefrom in favor of the verdict. The evidence may be direct or circumstantial. However, evidence supporting a criminal conviction must be based on logical inference and not upon surmise or conjecture. The state's brief-in-chief states that "neither of these letters actually reached Mrs. Cotton, but circumstantial evidence indicates that other similar letters did reach her during this period."

The state also argues that under the express language of Section 30-28-3(A), where defendant is shown to have the specific intent to commit such offense and "otherwise attempts" its commission, the offense of criminal solicitation is complete. The state reasons that even in the absence of evidence indicating that the solicitations were actually communicated to or received by the solicitee, under our statute, proof of defendant's acts of writing the letters, attempts to mail or forward them, together with proof of his specific intent to solicit the commission of a felony constitutes sufficient proof to sustain a charge of criminal solicitation. We disagree. The offense of criminal solicitation, as defined in Section 30-28-3 by our legislature, adopts in part language defining the crime of solicitation as set out in the Model Penal Code promulgated by the American Law Institute. As enacted by our legislature, however, Section 30-28-3 specifically omits that portion of the Model Penal Code subsection declaring that an uncommunicated solicitation to commit a crime may constitute the offense of criminal solicitation. The latter omission, we conclude, indicates an implicit legislative intent that the offense of solicitation requires some form of actual communication from the defendant to either an intermediary or the person intended to be solicited, indicating the subject matter of the solicitation. Defendant's convictions for solicitation are reversed and the cause is remanded with instructions to set aside the convictions for criminal solicitation.

Questions: 1. State the elements of solicitation according to the New Mexico statute.

2. List all the facts relevant to deciding whether James Cotton satisfied the act and mental elements of solicitation according to the statute.

3. In your opinion, should solicitation include an attendant circumstance element requiring that the solicitation be communicated to the person being solicited? Explain your answer, taking into account the arguments for and against having a crime of solicitation.