State v. Lingmann

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2014 UT App 45

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Plaintiff and Appellee,
V0.

DENNIS LINGMANN,
Defendant and Appellant.

Opinion
No. 20111024-CA
Filed February 21, 2014

Third District Court, Salt Lake Department
The Honorable Dennis M. Fuchs
The Honorable Vernice Trease
No. 091906971

Joanna E. Landau, Attorney for Appellant
Sean D. Reyes and Jeffrey S. Gray, Attorneys
for Appellee

JUDGE STEPHEN L. ROTH authored this Opinion, in which
JUDGE JAMES Z. DAVIS and SENIOR JUDGE RUSSELL W. BENCH
concurred. !

ROTH, Judge:

{1 Defendant Dennis Lingmann was arrested in 2008 for
multiple sex offenses involving a minor. While awaiting trial in
the Salt Lake County Jail, he offered his cellmate (Cellmate)
$2,000 to kill the minor and her family. Cellmate contacted

1. The Honorable Russell W. Bench, Senior Judge, sat by special
assignment as authorized by law. See generally Utah Code Jud.
Admin. R. 11-201(6).

State v. Lingmann
20111024-CA 2 2014 UT App 45
investigators, who requested that he surreptitiously record
further conversations with Lingmann. Cellmate agreed and
recorded two conversations in which Lingmann renewed the
offer. Lingmann was charged and convicted of six counts of
solicitation to commit aggravated murder, and the trial court
imposed six consecutive sentences of five years to life in prison.
Lingmann appeals, arguing that he received ineffective
assistance of counsel, that three of his convictions were
unsupported by the evidence, and that imposing six consecutive
sentences was an abuse of discretion. We affirm.
BACKGROUND
¶2 Lingmann performed odd jobs and worked as a
subcontractor for a family-owned business between 2005 and
2008.2 Mother, who co-owned the company with Father,
described their office as ‚more of a home family atmosphere
than it is a working office building‛ and often invited their
daughters to the office for weekly staff lunches. As a result, the
daughters were ‚familiar with all of the people there who came
and went,‛ including Lingmann, who quickly became a ‚trusted
family friend.‛
¶3 In early 2006, however, Lingmann began an inappropriate
relationship with one of the family’s daughters (Daughter), who
was a minor at the time. The relationship continued for three
years until Daughter disclosed disturbing details of Lingmann’s
conduct to her parents and cooperated in the State’s subsequent
investigation. During the relationship, Lingmann sent Daughter
2. ‚When reviewing a jury verdict, we examine the evidence and
all reasonable inferences drawn therefrom in a light most
favorable to the verdict, and we recite the facts accordingly.‛
State v. Kruger, 2000 UT 60, ¶ 2, 6 P.3d 1116. ‚We present
conflicting evidence only when necessary to understand the
issues raised on appeal.‛ Id.

State v. Lingmann
20111024-CA 3 2014 UT App 45
‚pretty vile‛ messages via phone and email, including
pornographic images, many of which involved children. He also
engaged in unlawful sexual activity with Daughter multiple
times. After Daughter ended the relationship, Lingmann
continued to send her threatening and inappropriate messages,
and her parents eventually obtained a no-contact order.
¶4 In March 2009, the State charged Lingmann with ten
counts of sexual exploitation of a minor, two counts of stalking,
and four counts of unlawful sexual activity with a minor. He
was then incarcerated in the Salt Lake County Jail for several
months awaiting trial. Lingmann eventually pleaded guilty to
four felony sex offenses and stalking.
¶5 In jail, one of Lingmann’s first cellmates was a man who
had been arrested on drug charges in March 2009. Cellmate and
Lingmann worked in the kitchen together and developed a
rapport. Lingmann opened up about his relationship with
Daughter and the pending sex-offense charges against him.
According to Cellmate, Lingmann also offered him ‚some quick
money‛ to kill Daughter’s parents because
*Daughter’s parents+ push*ed+ the issue, like they
told their daughter, you got to go and press
charges on *Lingmann+ for what *he’s+ doing to
you . . . . And [Lingmann] told me the reason he
was in jail right now is because *Daughter’s+
parents don’t like him, so they force her to press
sex charges that he was in jail for. That’s why he
wanted to get that done, that killing done so they
won’t go testify against him, so he will go free.
¶6 Cellmate said that Lingmann initially offered him $8,000
and his truck. He was supposed to pick up a gun from
Lingmann’s brother, and Lingmann promised to pay him with
the proceeds of a Utah Labor Commission complaint he had
filed against the family’s company.

State v. Lingmann
20111024-CA 4 2014 UT App 45
¶7 In late April, Cellmate was moved to a different cell after
an injury made it difficult for him to continue working in the
kitchen. About two weeks later, Cellmate sent a letter to the
district attorney’s office, claiming that Lingmann had ‚told *him+
how, when[,] where, he used to have sex with [Daughter], since
she was 15‛ and that Lingmann said ‚he would pay *Cellmate+
8,000 dollars to kill *Daughter’s+ parents.‛ In response to the
letter, investigators met with Cellmate several times to gather
more information. In one of these interviews, Cellmate agreed to
surreptitiously record conversations with Lingmann.
¶8 Jason Jones, Sergeant of the Unified Police Department’s
violent crimes unit, made arrangements for Cellmate and
Lingmann to be returned to the same cell. Sometime in late May
or early June, Cellmate said Lingmann approached him again,
but this time he ‚wanted the whole family‛ killed, not just the
parents, and asked him to burn the family’s house down with
gasoline. Initially, Lingmann said he wanted to spare Daughter
and wrote a letter to Cellmate’s wife instructing her to find out if
Daughter still had feelings for him. According to Cellmate, when
Lingmann received no response, he told Cellmate to ‚kill
everybody.‛
¶9 On June 16, Sergeant Jones met with Cellmate again and
gave him a small recording device. Over the next two weeks,
Cellmate recorded two conversations with Lingmann. In the first
conversation, Lingmann mentioned that he had recently
accepted a plea agreement in the sex-offense case. He was upset
that Daughter told the police ‚everything‛ about their
relationship, but Lingmann still thought Daughter’s ‚parents
have a big thing to do about it as far as her testifying.‛ Cellmate
told Lingmann he was going to burn the house down as they
had planned and asked Lingmann if Daughter still lived in her
parents’ home. Lingmann responded, ‚as far as anything her life
is in God’s hands,‛ adding that because Daughter ‚did nothing
to try to keep me out of here,‛ ‚she’s just as big a part as her
mom and dad is.‛ Cellmate also asked Lingmann what would
happen to Lingmann’s labor-commission complaint if the family

State v. Lingmann
20111024-CA 5 2014 UT App 45
were killed. ‚Well, if they’re dead,‛ Lingmann responded, ‚I
don’t give a shit.‛ Lingmann gave Cellmate the family’s address
and described the vehicles that would be in the driveway when
the family was home. Lingmann also told him when all the
family members were most likely to be in the house during the
day and warned him about obstacles he should be wary of to
avoid being caught. Lingmann reassured Cellmate that the
family had ‚so many other people that are pissed off at
[them] . . . , they would have a list of people that they would
have to check with because so many people . . . want to see them
dead.‛
¶10 In the second recorded conversation, Lingmann detailed
the layout of the family’s home, including where each member
of the family slept. When Cellmate asked if it was okay to kill
one of the sisters, Lingmann said she ‚can definitely burn,
because she’s a dumb ass bitch.‛ He told Cellmate that the other
two sisters could ‚burn too.‛ When Cellmate pressed Lingmann
on whether he was sure he wanted the whole family dead,
Lingmann hesitated at first about Daughter: ‚If, if *Daughter+
writes me back, I don’t know, it’s hard to say.‛ But when
Cellmate expressed concern that Lingmann would report him to
police if Daughter happened to be killed with the others,
Lingmann assured Cellmate that he had made up his mind that
Daughter should be killed ‚no matter what *she+ says because
*she+ had her chance.‛ Lingmann then gave him detailed
directions to the family’s home and admonished Cellmate to
make sure he got everyone because if he did not, it ‚would be a
winning situation for them because they have insurance on the
house.‛ This time, Lingmann offered to pay Cellmate $2,000 and
assured him that he would get enough from his labor-
commission complaint to cover the obligation.3
3. One of Lingmann’s relatives sold Lingmann’s truck while he
was in jail. The record is not entirely clear on this point, but that
may be why Lingmann reduced his offer from $8,000 to $2,000.
Lingmann’s statement about the source of the money—the labor-
(continued . . .)

State v. Lingmann
20111024-CA 6 2014 UT App 45
¶11 A few days later, Lingmann was transferred to a different
cell. As he was leaving, Lingmann said, ‚Well *Cellmate+, keep
your word, that’s all we got . . . .‛ Cellmate understood
Lingmann’s statement as a final confirmation to ‚carry through
with the plan, with the killings.‛
¶12 Sergeant Jones and Patricia Ishmael, a special agent from
Utah’s Internet Crimes Against Children Task Force, confronted
Lingmann about his conversations with Cellmate in an interview
on August 18, 2009. Lingmann initially denied asking another
inmate to harm Daughter’s family. Because Mother and Father
‚still owe*d him+ some money from work,‛ Lingmann
explained, he had nothing to gain from hurting their family. But
when pressed, Lingmann admitted that he had a cellmate who
‚said that he would burn their house‛ and that Lingmann ‚was
at that point still angry with them all.‛ He insisted, however,
that he did not want them hurt. When Sergeant Jones asked
Lingmann why he gave Cellmate the family’s address if he did
not want them harmed, Lingmann responded, ‚Well because in
the beginning I did want it to happen.‛ Lingmann insisted that
even though he gave Cellmate the family’s address, described
the vehicles that would be in the driveway, and offered to pay
him to kill them, he later told Cellmate not to harm the family.
¶13 On September 3, 2009, the State charged Lingmann with
six counts of criminal solicitation to commit aggravated murder.
At trial, prosecutors presented testimony from Cellmate,
Sergeant Jones, Special Agent Ishmael, and Mother. They also
played the recorded jailhouse conversations and a video of
Lingmann’s interview with investigators. Lingmann testified
that it was Cellmate’s idea to kill Daughter’s family. Cellmate
had lied to Lingmann about his background, claiming that he
commission complaint—also seems inconsistent with his
statements in the first recorded conversation suggesting that the
death of the family would prevent any recovery, but the internal
logic of his recorded statements is not at issue here.

State v. Lingmann
20111024-CA 7 2014 UT App 45
was a gang member, that he had fired a gun into crowds
defending his turf, and that he had been shot multiple times.
Lingmann claimed that he gave Cellmate the family’s address
and other personal information because he was ‚[t]rying to be
tough‛ to impress Cellmate and better make his way in the jail
system, not because he wanted the family harmed.
¶14 And according to Lingmann, he instructed Cellmate not
to go through with the plan just days after he asked him to burn
down the family’s home and one day before pleading guilty in
the sex-offense case. He testified that he told Cellmate that the
scheme was ‚crazy,‛ that he had unpaid bills and needed the
family alive to recover money from his labor-commission
complaint, and that his truck had been sold already. And
Lingmann maintained that Cellmate clearly understood that he
did not want the family harmed:
[Cellmate] was acting like he was asleep. I hit him
on the leg. He said, What?
I said, Did you hear me?
He’s like, Yeah, I heard ya.
I said, I don’t want you to do anything.
He says, Okay.
I says, Are we square on that?
And he said, Yes.
¶15 Lingmann’s version of their parting conversation also
differed from Cellmate’s. Lingmann testified that he told
Cellmate to “keep [his] word” that he and Cellmate were “not
doing anything” and that Lingmann did not “want anything to
happen.” According to Lingmann, Cellmate agreed, and as
Lingmann left the cell, he urged him to keep his promise because
“[o]ur word’s all we got.”
¶16 In his closing argument, Lingmann’s trial counsel
conceded that there was ‚certainly enough evidence to convict
[Lingmann] of solicitation to commit aggravated murder, six
counts, if you do not believe him when he told you that he came
to his senses when he [pleaded] guilty to his crimes, accepted

State v. Lingmann
20111024-CA 8 2014 UT App 45
responsibility for his actions, began thinking clearly and told
*Cellmate+ to forget it, that he didn’t want anybody harmed.‛
The jury convicted Lingmann of all six counts, finding that
Lingmann solicited the murder of six people in retaliation for the
family’s role in his initial prosecution. The district court imposed
six consecutive sentences of five years to life in prison.
Lingmann filed a motion to arrest judgment, arguing that he had
introduced uncontroverted evidence that he voluntarily
withdrew his request for Cellmate to kill Daughter and her
family. The court denied the motion, and Lingmann now
appeals.
ISSUES AND STANDARDS OF REVIEW
¶17 Lingmann raises three issues on appeal. First, he argues
that his trial counsel provided ineffective assistance by
conceding the elements of criminal solicitation and focusing
exclusively on the defense that Lingmann voluntarily withdrew
his offer to Cellmate. These concessions, Lingmann maintains,
foreclosed ‚the legitimate defense‛ that Lingmann lacked the
intent necessary to sustain a criminal solicitation conviction. ‚An
ineffective assistance of counsel claim raised for the first time on
appeal presents a question of law.‛ State v. Clark, 2004 UT 25, ¶ 6,
89 P.3d 162.
¶18 Second, Lingmann challenges the sufficiency of the
evidence to support three of his convictions. In particular, he
asserts that there was no evidence ‚that Lingmann solicited
[Cellmate] to retaliate against [the three sisters] for participating
in legal proceedings.‛ Therefore, Lingmann argues, the State did
not prove the aggravating circumstances of those convictions,
and they ‚should be vacated.‛ In evaluating sufficiency claims,
we view ‚the evidence and all inferences which may reasonably
be drawn from it in the light most favorable to the verdict.‛ State
v. Shumway, 2002 UT 124, ¶ 15, 63 P.3d 94. Accordingly, the
standard of review for sufficiency claims is highly deferential—
‚*w+e will reverse a jury verdict for insufficient evidence only if

State v. Lingmann
20111024-CA 9 2014 UT App 45
we determine that reasonable minds could not have reached the
verdict.‛ State v. Workman, 2005 UT 66, ¶ 29, 122 P.3d 639
(citation and internal quotation marks omitted).
¶19 Third, Lingmann argues that ‚*b+ecause [he] was
convicted for a single inchoate crime, the court should have
imposed concurrent sentences,‛ not six consecutive sentences
‚as though he committed six substantive crimes.‛ District courts
have ‚wide latitude and discretion‛ when making sentencing
decisions, and we will not reverse a sentencing determination
absent an abuse of discretion. State v. Moa, 2012 UT 28, ¶ 34, 282
P.3d 985 (citation and internal quotation marks omitted).
Whether Utah law prohibits the imposition of consecutive
sentences for inchoate crimes is a question of law reviewed for
correctness. See State v. Thorkelson, 2004 UT App 9, ¶ 9, 84 P.3d
854 (reviewing the legality of a defendant’s sentence for
correctness).
ANALYSIS
¶20 We conclude that Lingmann’s counsel did not provide
ineffective assistance and that the evidence presented at trial is
sufficient to support all six convictions. We also conclude that
the trial court did not abuse its discretion when it imposed
consecutive sentences.
I. Ineffective Assistance of Counsel
¶21 The Sixth Amendment to the United States Constitution
provides criminal defendants with the right to effective
assistance of counsel. U.S. Const. amend. VI (‚In all criminal
prosecutions, the accused shall enjoy the right . . . to have the
Assistance of Counsel for his defence.‛); Strickland v. Washington,
466 U.S. 668, 687 (1984). To prevail on an ineffective assistance of
counsel claim, Lingmann must show that his trial counsel’s
performance was deficient and that the deficient performance
prejudiced his defense. See State v. Lenkart, 2011 UT 27, ¶ 25, 262

State v. Lingmann
20111024-CA 10 2014 UT App 45
P.3d 1 (citing Strickland, 466 U.S. at 687). An attorney’s
performance is not deficient unless it falls ‚below an objective
standard of reasonable professional judgment.‛ State v.
Litherland, 2000 UT 76, ¶ 19, 12 P.3d 92 (citing Strickland, 466 U.S.
at 687–88). Trial counsel has ‚wide latitude in making tactical
decisions,‛ and we ‚will not question such decisions unless there
is no reasonable basis supporting them.‛ State v. Crosby, 927 P.2d
638, 644 (Utah 1996). ‚Decisions as to what witnesses to call,
what objections to make, and by and large, what defenses to
interpose, are generally left to the professional judgment of
counsel.‛ State v. Franco, 2012 UT App 200, ¶ 7, 283 P.3d 1004
(citation and internal quotation marks omitted).
¶22 Lingmann argues that despite ‚the strong legal and
evidentiary support‛ for a defense that he never intended to
harm Daughter and her family, his trial counsel conceded all the
elements of criminal solicitation and ‚pursue*d+ a weaker
defense of voluntary termination.‛ To convict a defendant of
criminal solicitation, the State must prove that the defendant
asked ‚another person to engage in specific conduct that under
the circumstances as the actor believes them to be would be a
felony.‛ Utah Code Ann. § 76-4-203(1) (LexisNexis Supp. 2013).4
A defendant can only be convicted of criminal solicitation if ‚the
solicitation is made under circumstances strongly corroborative
of the actor’s intent that the offense be committed.‛ Id. § 76-4-
203(2). Lingmann argues that his trial counsel’s exclusive
reliance on a voluntary-termination defense amounted to
ineffective assistance for three reasons. First, he asserts that
voluntary termination is not a defense to criminal solicitation
under Utah law. Second, even if it were, Lingmann argues that
negating his intent was a stronger defense. And third, he
maintains that the evidence at trial did not support a voluntary-
4. Throughout this opinion, we cite the current version of the
Utah Code because no substantive changes have been made to
the relevant statutory provisions that would affect the resolution
of the issues presented on appeal.

State v. Lingmann
20111024-CA 11 2014 UT App 45
termination defense. We conclude that trial counsel’s strategic
decision to pursue a voluntary-termination defense was not
deficient performance.
¶23 First, under Utah law, the question of whether voluntary
termination is a defense to criminal solicitation remains an open
question, and therefore trial counsel’s decision to pursue such a
defense, though not without risk, did not amount to deficient
performance. Cf. State v. Smit, 2004 UT App 222, ¶ 30, 95 P.3d
1203 (holding that the trial court’s failure to inform the
defendant of the possibility of jail time as a condition of
probation was not plain error because ‚the law *was+ unclear‛
on that issue). Lingmann argues that his trial attorney’s
‚concession of the elements *of criminal solicitation+ meant
voluntary termination could not acquit Lingmann because
voluntary termination must occur‛ before the unlawful
solicitation itself occurs. The pertinent statutes, however, do not
unambiguously exclude voluntary termination as a defense to
criminal solicitation. The criminal solicitation statute prevents a
defendant from asserting eight specific defenses to a solicitation
prosecution, including a number of defenses typically asserted
against criminal conspiracy charges, but voluntary termination is
not one of them. Utah Code Ann. § 76-4-203(3), (4) (providing
that lack of agreement, no overt act, not taking a substantial step
toward commission of the offense, and other defenses cannot be
asserted against criminal solicitation charges).
¶24 Moreover, other statutes provide some indication that
voluntary termination can be asserted as a defense to criminal
solicitation. See State v. Canton, 2013 UT 44, ¶21, 308 P.3d 517
(considering ‚the language and structure of [a] statutory
scheme‛ to interpret a statute (citation and internal quotation
marks omitted)). For instance, Chapter 2 of the Utah Criminal
Code sets forth general principles of criminal liability, including
culpable mental states and vicarious liability. See Utah Code
Ann. §§ 76-2-102, -202 (LexisNexis 2012). Section 76-2-202
imposes criminal liability on anyone who ‚solicits, requests,
commands, encourages, or intentionally aids another person‛ to

State v. Lingmann
20111024-CA 12 2014 UT App 45
engage in criminal conduct. Id. § 76-2-202 (emphasis added).
And section 76-2-307 provides that ‚*i+t is an affirmative defense
to a prosecution . . . [for] an offense under section 76-2-202 that
prior to the commission of the offense, the actor voluntarily
terminated his effort to promote or facilitate its commission.‛ Id.
§ 76-2-307.
¶25 While it may be true, as Lingmann asserts, that the
criminal offense of solicitation is complete the moment a
defendant extends an offer, the term ‚offense‛ in section 76-2-
307 could be read to refer to the underlying criminal act solicited
rather than the unlawful solicitation itself. This would allow
someone who solicits a criminal act to avoid liability by taking
steps to disavow his unlawful request and prevent the
underlying crime from occurring—a result Utah law encourages
in the context of criminal conspiracies. See State v. Peterson, 881
P.2d 965, 970 (Utah Ct. App. 1994) (‚*A+ conspirator who desires
to avoid further liability by withdrawing from the conspiracy
must take some affirmative action to withdraw from, or thwart,
the conspiracy.‛); see also State v. Kerekes, 622 P.2d 1161, 1166
(Utah 1980) (‚*E+ven if one has lent aid and encouragement,
voluntary abandonment of his participation prior to the
commission of the crime relieves him of criminal liability for its
commission providing the abandonment was communicated to
the remaining parties and occurred prior to a time when the
crime had become so inevitable that its commission could not
reasonably be stayed.‛); see also R. Michael Cassidy & Gregory I.
Massing, The Model Penal Code’s Wrong Turn: Renunciation as a
Defense to Criminal Conspiracy, 64 Fla. L. Rev. 353, 363–64 (2012)
(noting that one ‚justification for *a+ renunciation defense‛ to
criminal conspiracy ‚is to offer an incentive for conspirators to
desist from criminal activity‛). Without clearer law to the
contrary, it is difficult to see how trial counsel’s decision was
objectively unreasonable. See Strickland, 466 U.S. at 690
(explaining that ‚strategic choices made after thorough
investigation of law and facts relevant to plausible options are
virtually unchallengeable‛).

State v. Lingmann
20111024-CA 13 2014 UT App 45
¶26 Second, evidence of Lingmann’s guilt was strong enough
that conceding the elements of solicitation and pursuing a
voluntary-termination defense was a reasonable trial strategy.
See State v. Tennyson, 850 P.2d 461, 465 (Utah Ct. App. 1993)
(noting that ineffective assistance claims require the defendant to
‚overcome the strong presumption[] . . . that under the
circumstances, the challenged action might be considered sound
trial strategy‛ (citations and internal quotation marks omitted)).
At trial, the jury listened to two recordings where Lingmann
offered Cellmate $2,000 to kill Daughter’s entire family. He
wrote down the address of the family’s home and gave Cellmate
detailed directions on how to get there, described the vehicles
that would be in the driveway, and encouraged Cellmate to kill
everyone because ‚if they don’t die,‛ that ‚would be a winning
situation for them because they have insurance on the house.‛
The jury also watched a video of investigators confronting
Lingmann about these statements. When Sergeant Jones asked
Lingmann why he gave Cellmate the family’s address if he was
never serious about harming them, Lingmann responded, ‚Well
because in the beginning I did want it to happen.‛ And
Lingmann himself testified at trial that killing Daughter and her
family was Cellmate’s idea ‚[a]t very first‛ and that he
specifically told him days after the initial offer that he did not
‚want *Cellmate+ to do anything,‛ implicitly acknowledging that
at some point in time, Lingmann did in fact intend to harm the
family.
¶27 Faced with this challenging set of facts, Lingmann’s trial
counsel elected to pursue a voluntary-termination defense that
required him to bolster his client’s credibility by conceding the
elements of the offense and to attack Cellmate’s credibility. In
light of the evidence presented at trial, we cannot say there was
‚no reasonable basis‛ for that decision. See State v. Crosby, 927
P.2d 638, 644 (Utah 1996). The recordings and Lingmann’s
testimony were largely inconsistent with the notion that he
never wanted Cellmate to go through with the killings, but they
did not conflict with Lingmann’s claim that he specifically told
Cellmate to abort the plan. For instance, in Lingmann’s August

State v. Lingmann
20111024-CA 14 2014 UT App 45
2009 interview with investigators, Lingmann said that
‚*a+pproximately two days‛ after he and Cellmate discussed
burning the family’s home, Lingmann ‚cried and told him, I
don’t want you to do that. . . . I don’t want anything to happen to
them. I couldn’t have them on my conscience.‛ At trial,
Lingmann testified that he made sure Cellmate knew the plan
was off within days of the second recorded conversation. The
only evidence that contradicted these assertions directly was
Cellmate’s trial testimony that Lingmann never changed his
mind and actually encouraged him to ‚carry through with the
plan.‛ Lingmann’s trial counsel accordingly conceded that there
was ‚enough evidence to convict *Lingmann] of solicitation . . . if
you do not believe him . . . that he . . . told [Cellmate] to forget it,
that he didn’t want anybody harmed‛ and then went on to
attack Cellmate’s credibility and bolster Lingmann’s by
contrasting their respective criminal histories:
Do you believe that [Lingmann] walked away from
this crime? That he abandoned his intent? This is a
man with no prior criminal history. A productive
citizen up until this happened. Or do you choose to
believe [Cellmate]? Three-time convicted drug
dealer and . . . auto thief. Lied to a cop. Lied to Mr.
Lingmann about who he was, what he was. After
he was released from custody, he did not honor his
obligation to appear in court. Had to have a
warrant issued for him. The people that are using
him now had to jail him.
He’s in maximum security in prison. Had to
be taken into custody to ensure his appearance.
Committed a probation violation. And was lying to
you when he told you that upon their last meeting
Mr. Lingmann told him to keep his word and
commit the crime, do the foul deed.
¶28 We acknowledge that this strategy was not without its
risks. Indeed, conceding a ‚client’s guilt to the jury‛ is at times
‚a paradigmatic example of the sort of breakdown in the

State v. Lingmann
20111024-CA 15 2014 UT App 45
adversarial process‛ that the Sixth Amendment guards against.
United States v. Gonzalez, 596 F.3d 1228, 1239 (10th Cir. 2010)
(citation and internal quotation marks omitted). But in an
appropriate case, strategic concessions of guilt can strengthen a
defendant’s position and represent not just reasonable
professional assistance, but astute advocacy. Compare Turrentine
v. Mullin, 390 F.3d 1181, 1208 (10th Cir. 2004) (concluding that an
attorney’s concession of his client’s guilt during closing
argument was not deficient performance where the concession
had the potential to bolster his credibility with the jury to pursue
other defenses), with Scarpa v. Dubois, 38 F.3d 1, 10–11 (1st Cir.
1994) (holding that an attorney’s concession that his client was a
‚‘conduit’‛ for other drug traffickers was deficient performance
because it foreclosed any possible meritorious defenses and had
no possible strategic basis). Here, given the strong evidence of
Lingmann’s guilt, attempting to negate his intent would have
been a difficult and potentially counterproductive endeavor. See
United States v. Cronic, 466 U.S. 648, 656 n.19 (1984) (‚If there is
no bona fide defense to the charge, counsel cannot create one
and may disserve the interests of his client by attempting a
useless charade.‛). By contrast, conceding the elements of the
solicitation itself could have bolstered Lingmann’s credibility
and persuaded the jury that Lingmann’s parting words to
Cellmate confirmed a prior withdrawal from—not an
affirmation of—their unlawful agreement.
¶29 Accordingly, we cannot say that trial counsel’s strategy
was outside ‚the wide range of reasonable professional
assistance‛ that the Sixth Amendment requires. See Strickland v.
Washington, 466 U.S. 668, 689 (1984). Because Lingmann has not
shown that his trial counsel’s performance was deficient, we do
not address whether conceding the elements of criminal
solicitation prejudiced Lingmann’s defense. See id. at 697
(‚*T+here is no reason for a court deciding an ineffective
assistance claim . . . to address both components of the inquiry if
the defendant makes an insufficient showing on one.‛).

State v. Lingmann
20111024-CA 16 2014 UT App 45
II. Sufficiency of the Evidence to Support Three of the Six
Convictions
¶30 Lingmann also argues that there was insufficient evidence
to support three of his convictions. A conviction for criminal
solicitation to commit aggravated murder requires evidence that
the defendant specifically intended that the murder be carried
out as well as the presence of at least one aggravating factor. See
Utah Code Ann. § 76-4-203(1), (2) (LexisNexis Supp. 2013)
(listing the elements of criminal solicitation); id. § 76-5-202(1)
(outlining twenty possible aggravating factors for murder).
Here, the jury convicted Lingmann of soliciting the murder of six
people with the aggravating circumstance of ‚retaliating against
a person for testifying, providing evidence, or participating in
any legal proceedings or official investigation.‛ See id. § 76-5-
202(1)(k)(iii). Lingmann contends that the trial court should have
dismissed three of his convictions because the ‚evidence did not
prove Lingmann intended to retaliate against‛ Daughter’s three
sisters ‚for participating in any legal proceedings.‛ Rather, he
maintains that ‚the evidence failed to show the sisters
participated in any legal proceedings or that Lingmann had any
specific motivation for including the sisters.‛ ‚We will reverse a
jury verdict for insufficient evidence only if we determine that
reasonable minds could not have reached the verdict.‛ State v.
Workman, 2005 UT 66, ¶ 29, 122 P.3d 639 (citation and internal
quotation marks omitted). After reviewing the record, we cannot
agree that there was insufficient ‚proof of his intent to retaliate‛
against the sisters for the family’s involvement in legal
proceedings.
¶31 There was evidence presented at trial that Lingmann’s
attempt to harm the sisters was retaliation for other family
members’ participation in his prosecution. Cellmate testified that
Lingmann offered him ‚some quick money‛ to kill Daughter’s
parents so ‚they *wouldn’t+ go testify against him, so he will go
free.‛ Then, in the jailhouse recordings prosecutors played for
the jury, Lingmann expanded the scope of his plan when he
realized Daughter had told the police ‚everything‛ about their

State v. Lingmann
20111024-CA 17 2014 UT App 45
relationship. He instructed Cellmate to make sure he killed
everyone, identifying each sister by name and telling Cellmate to
kill them. He even explained to Cellmate how to tell if the sisters
were home and discouraged him from burning the family’s
home on a Saturday evening ‚because the daughters might be
coming home late at 3:00 in the morning‛ and then Cellmate
would not get everyone. The jury also listened to Lingmann’s
interview with police, where he admitted he was ‚still angry‛
with ‚the whole family‛ when he asked Cellmate to burn their
home.
¶32 Lingmann attempts to compartmentalize his animus
toward each victim, arguing that he only added the three sisters
to the plan ‚because they lived at home‛ and ‚in chagrin at the
thought of *Daughter+ not responding to his letter.‛ But the
spark that set Lingmann’s plan in motion was his desire to
prevent specific family members from testifying against him,
and the fuel that kept it going was his desire to retaliate for their
role in the legal process that eventually convicted him. That
Lingmann later expanded the scope of his vengeance to include
Daughter’s entire family does not vitiate the retaliatory motive
that animated the scheme from its inception. In these
circumstances, soliciting the murder of a witness is no different
from soliciting the murder of a witness’s family member in
retaliation for that witness’s testimony; both seek retribution
‚against a person for . . . participating in [a] legal proceeding[] or
official investigation.‛ See Utah Code Ann. § 76-5-202(1)(k)(iii).
We therefore conclude that there was sufficient evidence to
support Lingmann’s convictions for soliciting the aggravated
murder of Daughter’s three sisters.
III. The Consecutive Sentences
¶33 Finally, Lingmann challenges the validity of his sentence.
First, he argues that the imposition of consecutive sentences for
each solicitation conviction was ‚excessive and unjustly
punitive‛ because Lingmann had committed just one inchoate
crime. Second, he asserts that the sentencing judge based her

State v. Lingmann
20111024-CA 18 2014 UT App 45
sentencing decision ‚on unreliable and irrelevant information,‛
including admissions Lingmann made to investigators about his
past sexual conduct, his 2009 sex-offense convictions, and the
effect Lingmann’s behavior had on Daughter. Neither argument
is persuasive.5
A. Lingmann’s Sentence Was Not Excessive.
¶34 ‚In determining whether state offenses are to run
concurrently or consecutively,‛ courts must ‚consider the
gravity and circumstances of the offenses, the number of victims,
and the history, character, and rehabilitative needs of the
defendant.‛ Utah Code Ann. § 76-3-401(2) (LexisNexis 2012). We
will reverse a court’s sentencing decision if ‚it fails to consider
all legally relevant factors or if the sentence imposed is clearly
5. Overlaying Lingmann’s challenge to his sentence is a concern
that his ‚trial and sentencing were presided over by different
judges,‛ so ‚the sentencing court was unfamiliar with the
evidence and particular circumstances of Lingmann’s trial.‛
Lingmann asked the sentencing judge to recuse herself, citing
the fact that she had presided over Lingmann’s 2009 trial for
stalking and sex offenses. He raises the same concern on appeal
and cites an American Bar Association guideline in support. See
ABA Standards for Criminal Justice: Sentencing, 18-5.13 (3d ed.
1994) (recommending that ‚the judge who presided in the guilt
determination phase of a case should, if feasible, be the judge to
preside in sentencing proceedings‛). But Lingmann has not
directed us to any authority that supports his position that this
fatally undermined the integrity of his sentencing proceedings.
See Allen v. Friel, 2008 UT 56, ¶ 9, 194 P.3d 903 (‚An appellate
court is not a depository in which [a party] may dump the
burden of argument and research.‛ (alteration in original)
(citation and internal quotation marks omitted)). And the ABA
standard itself, even if applicable here, is itself conditional. We
are not persuaded that the change in judge before sentencing
resulted in any material prejudice to Lingmann.

State v. Lingmann
20111024-CA 19 2014 UT App 45
excessive.‛ State v. Valdovinos, 2003 UT App 432, ¶ 28, 82 P.3d
1167 (citation and internal quotation marks omitted); see also
State v. Killpack, 2008 UT 49, ¶ 59, 191 P.3d 17. A sentence is
clearly excessive only ‚if it can be said that no reasonable
*person+ would take the view adopted by the trial court.‛
Valdovinos, 2003 UT App 432, ¶ 14 (alteration in original)
(citations and internal quotation marks omitted).
¶35 In making sentencing determinations, judges have no
obligation to make findings of fact, and we generally presume
that the district court appropriately considered all the relevant
evidence and statutory factors. State v. Moa, 2012 UT 28, ¶ 35, 282
P.3d 985. In State v. Helms, 2002 UT 12, 40 P.3d 626, the Utah
Supreme Court affirmed the imposition of consecutive sentences
despite a sentencing order that was ‚lacking in detail.‛ Id. ¶ 12.
It determined that because the presentence report contained
sufficient information to support the court’s ultimate decision
and the district court indicated on the record that it had
reviewed the report, the defendant had not met his burden of
showing that his sentence was imposed in error. Id. ¶¶ 13, 16.
¶36 The evidence before the sentencing court in this case
adequately supported its decision to impose consecutive
sentences. After hearing argument from the State and from
Lingmann’s attorney, the judge indicated that she had ‚read the
pre-sentence report and reviewed everything for [the
sentencing+ hearing.‛ The report (PSR) detailed Lingmann’s
criminal history, which now included ten felony convictions,
and it discussed in some depth the jailhouse conversations that
led to Lingmann’s convictions for criminal solicitation. The PSR
noted that even though Lingmann had taken some responsibility
for his actions, he still seemed to ‚shift[] blame for his crimes to
*Cellmate+, referring to him as the ‘snitch’ and that he ‘kept
feeding me with the taking care of my victim bit.’‛ The PSR also
discussed Lingmann’s sex-offense convictions and several
instances in which Lingmann had sent Daughter pornographic
images during their relationship, some of himself and many that
involved children. And it contained detailed information about

State v. Lingmann
20111024-CA 20 2014 UT App 45
Lingmann’s family history, education and employment, and
alcohol and drug history. Mother also testified at Lingmann’s
sentencing hearing and stated that her family lived in constant
fear as a result of Lingmann’s conduct. She described the
emotional damage Lingmann’s behavior inflicted on her family,
requiring her daughters to seek counseling. Before imposing
sentence, the judge noted several aggravating factors: ‚repetitive
criminal conduct that occurred within a short time after Mr.
Lingmann was arrested,‛ ‚violent behavior‛ that
‚escalated . . . rather quickly after his arrest,‛ ‚a crime that is
characterized by extreme cruelty or depravity,‛ ‚multiple
victims,‛ and the fact that Lingmann still blamed ‚other
individuals or witnesses in this case‛ for his crimes. The judge
also specifically found that Lingmann had ‚severely
traumatized‛ and ‚terrorized‛ Daughter during a time in which
she was ‚particularly vulnerable.‛ The court thus had sufficient
information to adequately consider Lingmann’s ‚history,
character, and rehabilitative needs,‛ as well as ‚the gravity and
circumstances of the offenses‛ and ‚the number of victims,‛ and
we can presume that it did so. See Utah Code Ann. § 76-3-401(2);
supra ¶ 35.
¶37 Lingmann asserts, however, that there is no indication the
trial court ‚paid any consideration‛ to ‚the fact that *he+ was
being sentenced for an inchoate crime.‛ This is simply not
accurate, as the PSR discusses at length the circumstances that
led to Lingmann’s convictions. See State v. Schweitzer, 943 P.2d
649, 652 (Utah Ct. App. 1997) (affirming the imposition of
consecutive sentences because evidence of pertinent sentencing
factors was in the record and the ‚defendant *did+ not show that
the trial court failed to consider‛ each factor). Lingmann also
cites authority from other jurisdictions that he argues prohibits
multiple convictions for inchoate acts intended to result in a
single crime. See, e.g., Wyatt v. Commonwealth, 219 S.W.3d 751,
761 (Ky. 2007) (‚*W+here the object of a single act of
encouragement is to commit one or many crimes, it is the act of
encouragement which the solicitation statute punishes.‛). But see
Meyer v. State, 425 A.2d 664, 670 (Md. Ct. Spec. App. 1981)

State v. Lingmann
20111024-CA 21 2014 UT App 45
(rejecting ‚the notion that merely because there is but one
solicitor, one solicitee, and one conversation, only one
solicitation can arise‛). But Lingmann does not challenge the
validity of his six separate criminal solicitation convictions. Nor
does he even address the effect of Utah law that expressly allows
for the imposition of ‚consecutive sentences for offenses arising
out of a single criminal episode.‛ See Utah Code Ann. § 76-3-
401(5); see also id. § 76-1-401 (defining a ‚‘single criminal
episode’‛ as ‚all conduct which is closely related in time and is
incident to an attempt or an accomplishment of a single criminal
objective‛). As a consequence, Lingmann has failed to carry his
burden to show that the court’s imposition of consecutive
sentences was inappropriate or excessive.
B. Lingmann Has Not Shown that His Sentence Was Based
on Unreliable or Irrelevant Evidence.
¶38 Lingmann also argues that the court’s sentencing decision
was an abuse of discretion because the court considered
‚unreliable and irrelevant information.‛ In particular, he objects
to the prosecutor’s assertion at the sentencing hearing that
Lingmann had given Daughter drugs, discussion of Lingmann’s
admission that he sexually abused a six-year-old child, and other
references to the circumstances surrounding Lingmann’s prior
sex-offense convictions. In support of his argument, Lingmann
points out that the trial court excluded much of this evidence at
trial.
¶39 ‚[E]vidence that is inadmissible during the guilt phase of
a trial,‛ however, ‚may be admissible for sentencing purposes.‛
State v. Epling, 2011 UT App 229, ¶ 12, 262 P.3d 440 (citation and
internal quotation marks omitted). Utah law requires courts to
consider ‚the history, character, and rehabilitative needs of the
defendant‛ when deciding whether to impose consecutive or
concurrent felony sentences. Utah Code Ann. § 76-3-401(1), (2)
(LexisNexis 2012). This includes the defendant’s criminal
history, conduct at trial, and other relevant behavior. See, e.g.,
Epling, 2011 UT App 229, ¶¶ 1, 18 (affirming the imposition of

State v. Lingmann
20111024-CA 22 2014 UT App 45
consecutive sentences for child sexual abuse where the trial court
considered the defendant’s pornography use); State v. Jackson,
2010 UT App 328, ¶¶ 24–25, 243 P.3d 902 (affirming the
imposition of consecutive sentences in convictions for attempted
murder of the defendant’s ex-girlfriend and her son where the
trial court considered the fact that defendant had been convicted
previously of killing his wife and violating his parole); State v.
Alfatlawi, 2006 UT App 511, ¶¶ 9, 51, 153 P.3d 804 (affirming a
consecutive sentencing decision where the trial court considered
the defendant’s ‚bad attitude‛ and ‚diatribe of threats and
obscenities‛ during court proceedings).
¶40 To show that a judge relied on unreliable or irrelevant
information at sentencing, the defendant must show
‚(1) evidence of reliance, such as an affirmative representation in
the record that the judge actually relied on the specific
information in reaching her decision, and (2) that the
information she relied upon was irrelevant.‛ State v. Moa, 2012
UT 28, ¶ 35, 282 P.3d 985. Lingmann has not shown that the
judge’s sentencing decision was based on irrelevant information.
Indeed, evidence of Lingmann’s prior convictions, his admission
to investigators that he sexually abused a small child, and
the fact that he gave Daughter drugs were all discussed in
the PSR and were relevant to his history, character, and need
for rehabilitation. Lingmann’s sex-offenses—which were
perpetrated against one of the same victims in this case—were of
particular relevance considering the short duration and
relationship between them and his criminal solicitation
convictions. Similarly, Lingmann’s admission to investigators
that he had sexually abused a six-year-old child, coupled with
other evidence in the PSR of his affinity for child pornography,
demonstrated the potential danger he posed to society as well as
his need for rehabilitation, particularly when considered in the
context of the aggravated murder solicitation convictions. And if
the PSR is accurate that Lingmann provided Daughter with
drugs in addition to sexually abusing her—a fact Lingmann
denied at trial—that fact is also relevant to Lingmann’s character
and need for rehabilitation.

State v. Lingmann
20111024-CA 23 2014 UT App 45
¶41 Beyond Lingmann’s denial at trial that he gave Daughter
drugs and conclusory assertions that some of this information
was inaccurate, Lingmann does not discuss the contents of the
PSR on appeal, nor does he identify any evidence of substance
that undermines its reliability. See id. ¶ 36 (‚*T+he defendant
must demonstrate that the information [the court relied on] was
unreliable or irrelevant.‛). Lingmann does not deny sexually
abusing a six-year-old child, nor does he deny other aspects of
his 2009 sex-offense convictions that were discussed in the PSR.
He does argue that there was no evidence to support the State’s
assertion that Lingmann gave Daughter drugs. The lead
investigator in the sex-offense case, however, stated in the PSR
that ‚Lingmann had been sexually abusing and providing
unlawful controlled substances to *Daughter+ for several years.‛
And Lingmann did not challenge that statement—or anything
else in the PSR—in the district court. See Utah Code Ann. § 77-
18-1(6)(a) (LexisNexis 2012) (‚Any alleged inaccuracies in the
presentence investigation report . . . shall be brought to the
attention of the sentencing judge, and the judge may grant an
additional 10 working days to resolve the alleged inaccuracies of
the report with the department.‛). To the extent that Lingmann
now argues the statement is inaccurate, that issue is
unpreserved. See State v. Losee, 2012 UT App 213, ¶ 28, 283 P.3d
1055 (‚This issue was not raised before the trial court, and thus it
is unpreserved.‛). As a result, Lingmann has not demonstrated
that his sentence was based on unreliable or irrelevant evidence.
CONCLUSION
¶42 We conclude that Lingmann received effective assistance
of counsel because his trial counsel pursued a reasonable trial
strategy in light of the evidence and an unsettled question of
Utah law. We also conclude that the evidence supported all six
convictions for solicitation to commit aggravated murder and
that the imposition of consecutive sentences was not an abuse of
discretion. We therefore affirm.