                                IN THE
              ARIZONA COURT OF APPEALS
                              DIVISION TWO


                       THE STATE OF ARIZONA,
                              Appellee,

                                   v.

                          ANGEL PETE RUIZ,
                             Appellant.

                       No. 2 CA-CR 2015-0036
                        Filed April 27, 2016

          Appeal from the Superior Court in Pima County
                       No. CR20135012003
             The Honorable Deborah Bernini, Judge

           AFFIRMED IN PART; VACATED IN PART


                               COUNSEL

Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Tanja K. Kelly, Assistant Attorney General, Tucson
Counsel for Appellee

Harriette P. Levitt, Tucson
Counsel for Appellant
                          STATE v. RUIZ
                        Opinion of the Court


                             OPINION

Judge Miller authored the opinion of the Court, in which Presiding
Judge Vásquez and Chief Judge Eckerstrom concurred.


M I L L E R, Judge:

¶1           After a jury trial, Angel Ruiz was convicted of multiple
counts arising out of the armed robbery and attempted armed
robbery of two witnesses to a large marijuana theft. He was
sentenced to a combination of consecutive and concurrent sentences
totaling 47.25 years. On appeal, Ruiz contends the detective who
stopped him lacked reasonable suspicion, his constitutional right
against double jeopardy was violated by the trial court’s apparent
grant and then denial of his motion for judgment of acquittal, and
there was insufficient evidence for the jury to convict him of
attempted aggravated robbery and attempted armed robbery as to
one of the two victims. We affirm in part and vacate in part.

                Factual and Procedural Background

¶2           We view the facts in the light most favorable to
sustaining the jury’s verdicts. State v. Abdi, 236 Ariz. 609, n.1, 343
P.3d 921, 922 n.1 (App. 2015). In November 2013, a homeland
security agent, A.C., was conducting undercover surveillance at a
truck stop, tracking a load of marijuana in a specific tractor-trailer.
While A.C. watched, a sport utility vehicle (SUV) and a sedan circled
the parking lot, stopping near the target tractor-trailer. Six to eight
men got out of the vehicles, opened the trailer, and moved bales of
marijuana from the trailer to the sedan. A.C. called for backup, but
the vehicles sped away before it arrived.

¶3           A civilian, L.H., approached A.C. to share that he had
just witnessed the incident. L.H. and A.C. were standing at the back
of the open trailer when the SUV returned. Three people jumped
out of the SUV, pointed guns at L.H. and A.C., and ordered them to
get on the ground. One man, later identified as Anthony Ybave,
pointed a gun at the back of L.H.’s head, patted him down, and

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                           Opinion of the Court

removed an envelope containing about $380 from his pocket. Ybave
then pointed his gun at A.C.’s head and patted him down. The men
moved more marijuana to the SUV until sirens could be heard in the
distance and A.C. told the suspects the police were coming.

¶4          Two of the men left in the SUV, but crashed a short
distance away and fled on foot into the desert. While the search for
suspects was ongoing, a truck driver told a detective that a man had
approached him in the truck stop and asked for a ride. The
detective entered the truck stop and found Ruiz, who matched the
description given by the truck driver. Ruiz was breathing heavily,
his hands were shaky, and he looked disheveled. The detective took
him outside for a one-person “show-up,” and L.H. immediately
identified Ruiz as one of the three men from the SUV. Ruiz’s DNA1
was found on a cellular telephone near the crash site; the telephone
also contained photographs of Ruiz and text messages addressed to
him.

¶5           Ruiz was charged with two counts each of aggravated
robbery, armed robbery, kidnapping, and aggravated assault, and
one count each of burglary and possession of marijuana for sale.
During trial, one of the aggravated robbery counts was amended to
attempted aggravated robbery and one of the armed robbery counts
amended to attempted armed robbery. Ruiz was convicted on all
counts and sentenced as described above. This timely appeal
followed.

                        Motion to Suppress Stop

¶6          Ruiz argues the trial court erred by denying his motion
to suppress evidence obtained by the detective during his initial
questioning and the resulting show-up. He contends the interaction
was a Terry 2 stop that was unsupported by reasonable suspicion.
“Whether there is a sufficient legal basis to justify a stop . . . is a
mixed question of fact and law. We review the trial court’s factual


      1Deoxyribonucleic     acid.

      2Terry   v. Ohio, 392 U.S. 1 (1968).

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                         Opinion of the Court

findings on the motion to suppress for an abuse of discretion, but we
review its ultimate legal determination de novo.” State v. Evans, 237
Ariz. 231, ¶ 6, 349 P.3d 205, 207 (2015) (citation omitted).

¶7           The Fourth Amendment protects “[t]he right of the
people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures.” U.S. Const. amend. IV.
Pursuant to that amendment, in appropriate circumstances and in
an appropriate manner, a law enforcement officer may “approach a
person for purposes of investigating possibly criminal behavior even
though there is no probable cause to make an arrest.” Terry v. Ohio,
392 U.S. 1, 22-23 (1968). A Terry stop is a seizure under the Fourth
Amendment where the officer “restrains [the person’s] freedom to
walk away.” Id. at 16; see also United States v. Mendenhall, 446 U.S.
544, 554 (1980) (person seized if, under totality of circumstances,
reasonable person would have believed he was not free to leave).
Such a stop is constitutional at its inception “‘if supported by
reasonable suspicion’ that criminal activity is afoot.” State v. Rogers,
186 Ariz. 508, 510, 924 P.2d 1027, 1029 (1996), quoting Ornelas v.
United States, 517 U.S. 690, 693 (1996); see also State v. Winegar, 147
Ariz. 440, 446, 711 P.2d 579, 585 (1985) (“‘[I]f police have a
reasonable suspicion, grounded in specific and articulable facts, that
a person they encounter was involved in or is wanted in connection
with a completed felony, then a Terry stop may be made to
investigate that suspicion.’”), quoting United States v. Hensley, 469
U.S. 221, 229 (1985).

¶8            “‘Reasonable suspicion is something short of probable
cause,’” State v. Teagle, 217 Ariz. 17, ¶ 25, 170 P.3d 266, 272 (App.
2007), quoting State v. O’Meara, 198 Ariz. 294, ¶ 10, 9 P.3d 325, 327
(2000), but more than a mere “inchoate ‘hunch,’” id. In assessing
whether reasonable suspicion exists to justify a stop, officers may
rely on their training and experience “to make inferences from and
deductions about the cumulative information available to them.”
United States v. Arvizu, 534 U.S. 266, 273 (2002). The officer’s
assessment, like that of a reviewing court, is based on “‘the totality
of the circumstances—the whole picture’ of what occurred at the
scene.” Evans, 237 Ariz. 231, ¶ 8, 349 P.3d at 208, quoting United
States v. Cortez, 449 U.S. 411, 417 (1981). Furthermore, “[t]here is a
gestalt to the totality of the circumstances test”—although each
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                         Opinion of the Court

individual factor may have a potentially innocent explanation
standing alone, collectively they can amount to reasonable
suspicion. O’Meara, 198 Ariz. 294, ¶ 10, 9 P.3d at 327; accord Teagle,
217 Ariz. 17, ¶ 29, 170 P.3d at 274.

¶9            When reviewing a trial court’s ruling on a motion to
suppress, we view only the evidence presented at the suppression
hearing in the light most favorable to sustaining the court’s ruling.
State v. Gay, 214 Ariz. 214, ¶ 4, 150 P.3d 787, 790 (App. 2007). In this
case, an armed robbery had recently occurred outside the truck stop,
and the robbers’ getaway vehicle had crashed just behind the
parking lot. Detective Hernandez got a tip from a truck driver that a
man wearing a gray shirt and glasses had asked him for a ride.
Although asking someone for a ride has a potentially innocent
explanation, under the totality of the circumstances, Hernandez
reasonably could have inferred that a robber whose getaway vehicle
had just crashed nearby, moments before law enforcement arrived,
would have an urgent reason to look for a ride. See Arvizu, 534 U.S.
at 273. Hernandez saw Ruiz inside the truck stop wearing identical
clothes and glasses to those described by the witness. When
Hernandez approached him, he appeared nervous and his voice was
shaking.

¶10          Under the totality of the circumstances, at that point
Hernandez had a reasonable and articulable suspicion that Ruiz had
been involved in the recent armed robbery just outside the truck
stop. Accordingly, Hernandez did not violate Ruiz’s rights under
the Fourth Amendment by stopping him long enough to complete a
one-man show-up with one of the victims still present at the scene.
See Winegar, 147 Ariz. at 446, 711 P.2d at 585. The trial court did not
abuse its discretion in denying the motion to suppress the
identification of Ruiz obtained during the show-up.

                          Double Jeopardy

¶11          Ruiz contends the trial court violated the constitutional
prohibition against double jeopardy when it initially indicated it
would grant his motion for judgment of acquittal on two counts
during trial, but then permitted a response from the state before
concluding the motion should be denied. He did not object below,

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                         Opinion of the Court

therefore we review for fundamental, prejudicial error. State v.
Musgrove, 223 Ariz. 164, ¶ 10, 221 P.3d 43, 46 (App. 2009). A double
jeopardy violation constitutes fundamental error. Id. We review de
novo whether a double jeopardy violation occurred. State v. Nereim,
234 Ariz. 105, ¶ 22, 317 P.3d 646, 652-53 (App. 2014).

¶12           The Double Jeopardy Clause of the Fifth Amendment
prohibits reexamination of an acquittal even when granted by a
judge before a jury verdict. Smith v. Massachusetts, 543 U.S. 462,
466-67 (2005).      “[S]ubjecting the defendant to postacquittal
factfinding proceedings going to guilt or innocence violates the
Double Jeopardy Clause.” Smalis v. Pennsylvania, 476 U.S. 140, 145
(1986). Ruiz moved for a judgment of acquittal during trial, and the
counts were later submitted to the jury; therefore, after the court’s
ruling, Ruiz was subjected to further “‘factfinding proceedings
going to guilt or innocence.’” See Smith, 543 U.S. at 467, quoting
Smalis, 476 U.S. at 145. The question, then, is whether the judge’s
initial statements regarding the motion constituted a judgment of
acquittal. Id.

¶13          Three Arizona cases provide guidance for this fact-
intensive inquiry: State v. Newfield, 161 Ariz. 470, 778 P.2d 1366
(App. 1989), State v. Millanes, 180 Ariz. 418, 885 P.2d 106 (App. 1994),
and State v. Musgrove, 223 Ariz. 164, 221 P.3d 43 (App. 2009). In
Newfield, on which the state relies, the trial court initially stated, “To
the extent that your judgement of acquittal under Rule 20 requests
an acquittal on a Class 4 felony, that will be granted,” and then
reversed its ruling after a brief discussion with counsel. 161 Ariz. at
471, 778 P.2d at 1367. On appeal, we concluded there had been no
double jeopardy violation because of the “continuing discussion
between the court, the prosecutor, and defense counsel,” and the
ultimate denial of the motion, also reflected in the minute entry. Id.
at 472, 778 P.2d at 1368. In Millanes, the trial court granted an
acquittal, the state twice sought reconsideration, and the court
ultimately reversed its ruling. 180 Ariz. at 419, 885 P.2d at 107. On
appeal, we reversed, relying on the trial court’s restatement of its
dismissal in response to the state’s first motion for reconsideration
and the fact that the minute entry reflected both the dismissal and
the reversal after a recess. Id. at 422, 885 P.2d at 110. Finally, in
Musgrove, the defendant moved for a judgment of acquittal, and the
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                           STATE v. RUIZ
                         Opinion of the Court

state submitted the issue on the evidence without argument. 223
Ariz. 164, ¶ 11, 221 P.3d at 46. The court granted the Rule 20 motion
as to the conspiracy charge, and when the state indicated confusion,
the court stated, “‘I DV’d the conspiracy.’” Id. ¶ 11. The state asked
to argue its position and the court stated it would not change its
mind; after argument, however, the court reversed its ruling. Id.
The minute entry reflected the acquittal. Id. We distinguished
Newfield because the motion in that case had only been considered
but not decided before denial. Id. ¶ 14. We vacated the conviction,
holding that double jeopardy attaches immediately, and no break in
proceedings is required. Id.

¶14          In this case, the trial court suggested it would dismiss
counts two and four, the robbery counts related to A.C., because
Ybave3 had not taken anything “from [A.C.’s] person or immediate
presence” as required by the aggravated and armed robbery
statutes. See A.R.S. §§ 13-1902(A), 13-1903(A), 13-1904(A). Agreeing
with the court’s initial observations, Ruiz moved for judgment of
acquittal pursuant to Rule 20(a), Ariz. R. Crim. P. After the state
argued that L.H.’s money had been taken from A.C.’s immediate
presence, the court stated, “I am going to dismiss Counts Two and
Four. Those are the armed robbery and aggravated robbery [counts]
pertaining as to [A.C.].” The state then sought rebuttal, arguing the
pat-down of A.C. constituted attempt, and requesting that the
counts be amended accordingly. The trial court allowed the
amendment and denied the Rule 20 motion. The minute entry
reflects the initial dismissal, but three lines below the dismissal it
reads, “IT IS ORDERED State’s motion for amendment of Counts 2
and 4 is GRANTED; therefore, the Court reverses its prior ruling,
thereby not dismissing Counts 2 and 4.”

¶15          Here, the trial court’s statement that it is “going to
dismiss” is ambiguous. Generally, “going to,” as used here,
“[e]xpress[es] a plan or intention that something will happen
(usually soon), or mak[es] a prediction that something will happen,
based on present events or circumstances.” Go, Oxford English
Dictionary Online (Oxford Univ. Press 2015). The statement may be


      3The   state argued Ruiz was liable as an accomplice.

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                            STATE v. RUIZ
                          Opinion of the Court

a prediction of an action in the future, or, as Ruiz notes, the
speaker’s decision may already be made and action may be
immediate. Moreover, the remainder of the transcript does not
clarify whether the court merely predicted dismissal or intended
immediate dismissal.

¶16          But as in Millanes and Musgrove, the minute entry
unambiguously states that it granted the motion, which is then
followed by an equally clear statement that the court reversed its
prior ruling. Musgrove, 223 Ariz. 164, ¶ 11, 221 P.3d at 46; Millanes,
180 Ariz. at 419, 424, 885 P.2d at 107, 112. This clarifies that the trial
court actually did dismiss counts two and four before reconsidering
the ruling.4 Because we find Millanes and Musgrove controlling,5 we

      4A  discrepancy between a transcript and a minute entry may
be resolved by reference to the transcript. See, e.g., State v. Ovante,
231 Ariz. 180, ¶ 38, 291 P.3d 974, 982 (2013) (when discrepancy can
be clearly resolved by reference to record, oral pronouncement of
sentence controls over minute entry). Here, the transcript was
ambiguous rather than in conflict with the minute entry; therefore,
the minute entry clarifies the oral statement.

      5 We    observe that our supreme court has not definitively
addressed this issue. The United States Supreme Court has stated
that double jeopardy principles do not prevent the prosecution from
“seek[ing] to persuade the court to correct its legal error before it
rules, or at least before the proceedings move forward.” Smith, 543 U.S. at
474 (emphasis added). Federal circuit courts have relied on that
statement to find no double jeopardy violation even where
significant amounts of time have passed but trial has not proceeded.
See, e.g., United States v. Hill, 643 F.3d 807, 867 (11th Cir. 2011) (95
pages of transcript between acquittal and reversal contained only
arguments on various motions); United States v. Lucas, 516 F.3d 316,
337-38 (5th Cir. 2008) (acquittal reversed after weekend recess but
before trial progressed). Nonetheless, we are generally bound by
our previous decisions and, although they are very strict, we cannot
say they were incorrectly decided. See State v. Dungan, 149 Ariz. 357,
361, 718 P.2d 1010, 1014 (App. 1985) (previous decisions highly
persuasive and binding unless court is convinced prior decision is
clearly erroneous or conditions have changed).
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                          STATE v. RUIZ
                        Opinion of the Court

hold the trial court’s reversal of its ruling and amendment of counts
two and four violated Ruiz’s right against double jeopardy.6

                            Disposition

¶17          We vacate Ruiz’s convictions and sentences for
attempted aggravated robbery and attempted armed robbery, and
affirm his remaining convictions and sentences.




      6 Because we vacate Ruiz’s convictions and sentences on
counts two and four, we need not address his alternative argument
that there was insufficient evidence supporting those convictions.

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