Brief Fact Summary. In this action, the Defendant, Cotton (Defendant), appeals his convictions in the lower court of two counts of criminal solicitation.
Synopsis of Rule of Law. 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.
Issue. Can a conviction on a charge of solicitation be upheld where the person intended to be solicited never receives a communication from the solicitor?
Held. The Defendant’s convictions for solicitation are reversed and the cause is remanded with instructions to set aside the convictions.
Discussion. The court discussed the differences between New Mexico’s statute and the solicitation provisions adopted by the Model Penal Code. The court noted that New Mexico’s legislature, when drafting their own solicitation section, specifically omitted that portion of Model Penal Code declaring that an uncommunicated solicitation to commit a crime may constitute the offense of criminal solicitation. This omission by the New Mexico legislature indicates a specific legislative intent to require some form of actual communication before a solicitation conviction may be upheld.