Statute

This is a common law offense.

Elements

A person guilty of this offense(1) entices, advises, counsels, incites, induces, orders, or commands another to commit a crime(2) with the specific intent that the other person commit the crime.

Punishment

Unless a different classification is specifically stated in a statute, solicitation to commit a felony is punishable two classes lower than the felony solicited, except that solicitation to commit a Class A or B1 felony is a Class C felony; solicitation to commit a Class B2 felony is a Class D felony; solicitation to commit a Class H felony is a Class 1 misdemeanor; solicitation to commit a Class I felony is a Class 2 misdemeanor; and solicitation to commit any misdemeanor is punishable as a Class 3 misdemeanor. G.S. 14-2.6. For example, solicitation to commit a Class G felony would be a Class I felony. An example of a statute providing for different punishment for solicitation is G.S. 14-288.22, punishing solicitation to injure to another by the use of a nuclear, biological, or chemical weapon of mass destruction as a Class B1 felony when the main offense is a Class A felony.

For some crimes, the relevant statute provides that a solicitation is punished just like the completed crime. See, e.g., G.S. 14-118.12 (solicitation of residential mortgage fraud is punished like the main offense).

Notes

Element (1). A solicitation has occurred even if the person solicited is a law enforcement officer who has no intention of carrying out the crime. State v. Keen, 25 N.C. App. 567 (1975). However, the defendant must entice, advise, counsel, incite, induce, order, or command someone to commit the crime. Thus, the evidence was insufficient to establish solicitation to commit murder when it showed only that the defendant had a “plan” to have the victim killed, had an agreement with the killer about when he should arrive at the scene to kill the victim, and twice stated that she wanted the victim “gone,” but there was no evidence that the defendant counseled, enticed, or induced the killer to murder the victim. State v. Crowe, 188 N.C. App. 765 (2008).

Element (2). A solicitation is committed even if the crime solicited is not carried out; the solicitation itself is the offense. State v. Hampton, 210 N.C. 283 (1936).

Charging issues. In solicitation indictments, it is not necessary to allege the nature of the solicitation “with technical precision.” State v. Furr, 292 N.C. 711, 722 (1977).

Greater and lesser-included offenses. Solicitation to commit murder is a lesser-included offense of murder that is committed as an accessory before the fact. State v. Westbrooks, 345 N.C. 43 (1996). Solicitation to commit murder is not a lesser-included offense of murder that is committed based on the theory of acting in concert. State v. Kemmerlin, 356 N.C. 446 (2002). Solicitation is not a lesser-included offense of conspiracy. State v. Richardson, 100 N.C. App. 240 (1990); see also the note entitled “Relation to other offenses,” below.

Multiple convictions and punishments. A single solicitation may continue over a period of time and involve several contacts when the person solicited gives no definite refusal to the solicitor’s request. But a definite refusal coupled with a lapse of some time may end the transaction so that a new request upon another occasion may constitute a new offense. Furr, 292 N.C. 711. In such a case, a defendant may be charged with more than one solicitation.

Because the offenses are separate and distinct, a defendant may be punished for both solicitation and an attempt to commit the same offense. State v. Clemmons, 100 N.C. App. 286, 290 (1990).

Relation to other offenses. A solicitation could make the defendant an accessory before the fact and, therefore, a principal to the crime, if the offense solicited is carried out. In this case, the solicitation is a lesser-included offense of the accessory before the fact offense. See the note entitled “Greater and lesser-included offenses,” above (discussing this rule as to solication to commit murder and accessory before the fact to murder).

A solicitation is complete when the request to commit the crime is made. State v. Benardello, 164 N.C. App. 708 (2004). Conspiracy, however, requires an agreement to do an unlawful act. Id.; see “Conspiracy, ” below. It is possible to solicit someone to commit a crime without the agreement required for a conspiracy ever being reached, Benardello, 164 N.C. App. at 711; in such a case, solicitation and not conspiracy is the proper charge.

Solicitation to commit a misdemeanor. North Carolina case law has recognized the offenses of solicitation to commit misdemeanor assault, State v. Suggs, 117 N.C. App. 654 (1995), and solicitation to commit common law obstruction of justice, Clemmons, 100 N.C. App. 286. It is unclear whether solicitation to commit other kinds of misdemeanors would be recognized. 2 W. LaFave & A. Scott Jr., Substantive Criminal Law 4, 4–5 (2d ed. 2003).

Related Offenses Not in This Chapter

“Solicitation of a Child by a Computer or Other Electronic Device to Commit an Unlawful Sex Act” (Chapter 10)“Soliciting Participation in Street Gang Activity” (Chapter 19)“Misdemeanor Inciting to Riot” (Chapter 19)“Felony Inciting to Riot” (Chapter 19)“Offering a Bribe” (Chapter 21)“Subornation of Perjury” (Chapter 21)“Procuring for Prostitution” (Chapter 23)See sexual exploitation of a minor (various offenses) in Chapter 24 (Obscenity, Exploitation of a Minor, and Adult Establishment Offenses).“Employing or Intentionally Using a Minor to Commit a Controlled Substance Offense” (Chapter 27)“Promoting Drug Sales by a Minor” (Chapter 27)Enticing minors out of the State for the purpose of employment. G.S. 14-40.Soliciting charitable contributions by telephone. G.S. 14-401.12.

Supplement