Please Note: Your deposit will not be applied to this question unless you click accept. JustAnswer provides me with absolutely no compensation and I receive nothing at all for my time spent responding to your question unless you click accept.
Thank you for your question.
What follows may or may not be what you want to read. However, please do not shoot the messenger. While I can control the quality of an answer, my control over the content of an answer is restrained by the truth.
30-9-2 NMSA defines "prostitution" and "sexual act." The statute states that the crime is a petty misdemeanor for a first offense and a misdemeanor for a second offense. Not knowing what sort of conduct your wife consented to or discussed with the undercover officer, it's impossible to know her degree of culpability. Depending on the circumstances, the state may have sufficient evidence to support such charges.
Prostitution consists of knowingly engaging in or offering to engage in a sexual act for hire.
As used in this section "sexual act" means sexual intercourse, cunnilingus, fellatio, masturbation of another, anal intercourse or the causing of penetration to any extent and with any object of the genital or anal opening of another, whether or not there is any emission.
Whoever commits prostitution is guilty of a petty misdemeanor, unless such crime is a second or subsequent conviction, in which case such person is guilty of a misdemeanor.
30-9-4.E NMSA is intended to prosecute individuals who solicit customers for prostitutes but do not act as prostitutes. In other words, if charged under this statute, the state is asserting that the defendant was trying to get a customer for a prostitute. If the state has charged you or your wife under this statute, the state is claiming that the defendant was trying to help a prostitute obtain a customer. The statute specifies that the person must not be a prostitute or a patron. So the state would be charging your wife of this with the belief that it may be able to convict her of trying to solicit a customer for a prostitute, even if it can't convict her of prostitution itself. If you are charged under this statute, the state would be charging you with soliciting a customer for a prostitute (presumably your wife in this instance). If all they've got is your phone call to check on your wife, you may have solid room to develop a defense. Your wife was already with the alleged "patron" when you called, leaving little room for solicitation. Further, your wife may have a strong defense to this charge if reference to sexual activities was never made. However, even innuendo may be useful for a conviction in such a situation.
30-9-4: Promoting prostitution
Promoting prostitution consists of any person, acting other than as a prostitute or patron of a prostitute:
E. knowingly soliciting a patron for a prostitute or for a house of prostitution or for any place where prostitution is practiced, encouraged or allowed
30-28-3 NMSA is the statute for criminal solicitation. With a criminal solicitation charge, the state is asserting that the defendant was trying to get another person to commit a felony. This charge is based on the previous charge. The state's claim here would be that in soliciting the felony listed above, the defendant would therefore be guilty under this statute for soliciting felonious activity. I don't think this flies at all. The statute specifically states:
"A person is not liable for criminal solicitation when his solicitation constitutes conduct of a kind that is necessarily incidental to the commission of the offense solicited."
30-28-3. Criminal solicitation; penalty.
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.
B. In any prosecution for criminal solicitation, it is an affirmative defense that under circumstances manifesting a voluntary and complete renunciation of criminal intent, the defendant:
(1) notified the person solicited; and
(2) gave timely and adequate warning to law enforcement authorities or otherwise made a substantial effort to prevent the criminal conduct solicited.
The burden of raising this issue is on the defendant, but does not shift the burden of proof of the state to prove all of the elements of the crime of solicitation beyond a reasonable doubt.
C. It is not a defense that the person solicited could not be guilty of the offense solicited due to insanity, minority or other lack of criminal responsibility or incapacity. It is not a defense that the person solicited is unable to commit the crime solicited because of lack of capacity, status or other characteristic needed to commit the crime solicited, so long as the person soliciting or the person solicited believes that he or they have such capacity, status or characteristics.
D. A person is not liable for criminal solicitation when his solicitation constitutes conduct of a kind that is necessarily incidental to the commission of the offense solicited. When the solicitation constitutes a felony offense other than criminal solicitation, which is related to but separate from the offense solicited, the defendant is guilty of such related felony offense and not of criminal solicitation. Provided, a defendant may be prosecuted for and convicted of both the criminal solicitation as well as any other crime or crimes committed by the defendant or his accomplices or coconspirators, or the crime or crimes committed by the person solicited.
E. Any person convicted of criminal solicitation shall be punished as follows:
(1) if the highest crime solicited is a capital or first degree felony, the person soliciting such felony is guilty of a second degree felony;
(2) if the highest crime solicited is a second degree felony, the person soliciting such a felony is guilty of a third degree felony; and
(3) if the highest crime solicited is a third degree felony or a fourth degree felony, the person soliciting such felony is guilty of a fourth degree felony.
You and your wife both need legal representation. These charges are quite serious. Your attorneys can help you protect your interests and ensure that the state does not walk all over you. It's very difficult for a defendant to properly represent his/her own interests. Your attorney will be able to evaluate the evidence to see if the state has sufficient evidence to support the charges. Your attorney can then help you determine whether or not the charges can be fought or whether or not a plea would be in your best interests.
You will definitely want to retain a local attorney to help you with this matter. You and your wife may both potentially have strong defenses available.
Please remember to click accept so that I will receive credit for my time and effort spent responding to your question. Bonuses are always greatly appreciated.
If you need additional clarification of this response, please ask a follow-up question and I will be happy to clarify.
Please click the green Accept Button and leave Positive Feedback so that I receive credit for answering your question. Bonuses are always greatly appreciated. I do not receive any payment at all from JustAnswer unless you click accept.
Please remember: Feedback is left for me as an answerer. Please do not shoot the messenger. My control over the content of the answer is limited by the restraint of truth.
Disclaimer: By engaging in this correspondence, you agree to and understand the following:
No attorney-client relationship is formed through this correspondence. The following information provided for educational purposes only and is not legal advice/legal services. Correspondence through JustAnswer is visible to the public. T-USA is not familiar with your situation and could not possibly provide legal advice/legal services through JustAnswer. T-USA does not claim to be licensed to practice law in the state for which this information is provided. The information provided in this correspondence cannot and should not be relied on for legal purposes.
If you need legal advice/services you should seek a local attorney as soon as possible. You can find a local attorney at http://www.lawyers.com or http://www.martindale.com.