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

2

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 
STATE v. RUIZ

Opinion of the Court

3

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 Terry2 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).
STATE v. RUIZ

Opinion of the Court

4

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 
STATE v. RUIZ

Opinion of the Court

5

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, 
STATE v. RUIZ

Opinion of the Court

6

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 factintensive 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 
STATE v. RUIZ

Opinion of the Court

7

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.
STATE v. RUIZ

Opinion of the Court

8

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.

5We 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).
STATE v. RUIZ

Opinion of the Court

9

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.