State v. Cotton

1990-NMCA-025, 790 P.2d 1050



In considering challenges to the sufficiency of the evidence, the standard of review on appeal is whether the evidence contained in the record, considered in a light most favorable to the state, is sufficient to indicate that a rational factfinder could have found defendant guilty of the offense charged beyond a reasonable doubt with respect to every element of the alleged offense.On appeal, the court of appeals views 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, and material facts may be proved by inference. However, evidence supporting a criminal conviction must be based on logical inference and not upon surmise or conjecture.


While defendant was in jail awaiting trial on sexual offense charges, he discussed with his cellmate his desire to persuade his stepdaughter not to testify against him. The cellmate intercepted and provided to the state a letter in which defendant asked his wife to persuade the stepdaughter not to testify or to give her money to leave the state so that she would be unavailable for trial. The government seized a second letter to defendant's wife from his car before it was mailed. He was convicted of two counts of criminal solicitation following a jury trial. The case was appealed to the Court of Appeals of New Mexico.


Was the conviction proper?




The court reversed his convictions and remanded the action with instructions to set the convictions aside. The evidence was insufficient to support the convictions because defendant's wife never received the letters. N.M. Stat. Ann. § 30-28-3 adopted some of the language of Model Penal Code § 5.02(2), but omitted language pertaining to uncommunicated criminal solicitation. The court determined that the omission indicated an implicit legislative intent that the offense of solicitation required some form of actual communication between defendant and the person solicited or an intermediary. Other letters sent by defendant to his wife did not establish solicitation in the absence of proof of their contents.

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