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.

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. 

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.