## Facts

- James W. Cotton, Jr. was jailed awaiting trial on charges involving alleged sexual offenses against his fourteen-year-old stepdaughter.
- While in jail, Cotton wrote letters to his wife, Gail, describing strategies intended to prevent the stepdaughter from testifying or to influence her testimony.
- In a first letter dated September 23, 1987, Cotton asked Gail to persuade the stepdaughter not to testify and suggested inducing her to leave the state, including by giving her money.
- Cotton gave the sealed letter to a cellmate to obtain a stamp so it could be mailed later; the cellmate removed the letter, replaced it with a blank page, returned the envelope, and delivered the original to law enforcement.
- It was undisputed the first letter was never mailed and never received by Gail.
- A second letter dated September 24 and 26, 1987 revised the plan, proposing that Gail arrange a Christmas visit and convince the stepdaughter not to testify or to testify favorably; this letter was never mailed and was later found in Cotton’s car.
- The State charged Cotton with two counts of criminal solicitation (premised on soliciting bribery of a witness or tampering with a witness) and a conspiracy count.
- After a jury trial, Cotton was convicted on two solicitation counts; the conspiracy count was resolved by directed verdict for the defense, and one solicitation count was later dismissed by the State.
- Cotton appealed; the appellate court resolved the case on sufficiency of the evidence for solicitation.

## Issues

1. Whether New Mexico’s criminal solicitation statute permits conviction when the alleged solicitation is never communicated to the intended recipient or to an intermediary.

## Decision

- The Court of Appeals of New Mexico reversed the criminal solicitation convictions and remanded with instructions to set them aside.
- The court held that New Mexico solicitation requires actual communication to the intended solicitee or an intermediary.
- Because neither letter was communicated to anyone, the evidence was insufficient to prove an essential element of solicitation beyond a reasonable doubt.

## Legal Principles

- Criminal solicitation under New Mexico law is not complete unless the defendant actually communicates the request, command, or encouragement to the person intended to be solicited or to an intermediary.
- Drafting or writing a solicitation that remains unmailed, unreceived, or otherwise within the defendant’s control does not satisfy the act requirement of solicitation.
- Legislative omission of language that would criminalize uncommunicated solicitations supports construing the statute to require actual communication.
- When the prosecution fails to prove communication, solicitation convictions must be reversed for insufficient evidence.

## Conclusion

The court set aside Cotton’s solicitation convictions because the State proved only an intent reflected in uncommunicated letters; without actual communication to the intended recipient or an intermediary, the statutory elements of criminal solicitation were not met.


State v. Cotton, 109 N.M. 769, 790 P.2d 1050 (Ct. App. 1990)