IN THE 

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION T WO

T HE S TATE OF A RIZONA

, Appellee

,

v.

A NGEL P ETE R UIZ

, 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 AppellantSTATE 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 tri al, 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 sentenc es totaling 47.25 years. On appeal, Ruiz contends the detective who stopped him lacked reasonable suspicion, his constitutional right against double jeopardy w as violated by the trial court’s apparent grant and then denial of his motion for judgment of ac quittal, and there was insufficient evidence for the jury to convict him of attempted a ggravated robbery and attempted a rmed robbery as to

one of the two victims

. W e 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 st op , 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 tr actor

- 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 bac k 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,

p ointed a gun at the back of L.H.’s head, patted him down, andSTATE 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 heav il y, his hands were shaky, and he looked disheveled. The detective took

him outside for a one

- person “ show

- up ,” and L.H. im mediately

identified Ruiz as one of the three men from the SUV

. Ruiz’s DNA 1

was found on a cell ular tele phone near the crash site ; the tele phone

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

attempte d 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

. T his timely appeal

followed.

Motion to Suppress Stop

¶6 Ruiz argues the trial court erred by de nying his motion

to suppress ev idence 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

1 Deoxyribonucleic acid.

2 Terry 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 a mendment, 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 cir cumstances, 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 encounte r 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 assessi ng whether reasonable suspicion exists to justify a stop

, officer s 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). T he 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 (198 1). Furthermore, “ [t] here is a gestalt to the totality of the circumstances test”

— although eachSTATE 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 W hen 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 sustaini ng 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 Hern andez 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 i nferred 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

Her nandez had a reasonable and articulable suspicion that Ruiz had

been i nvolved 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 suppre s s the identification of Ruiz obtained during the show

- up

.

Double Jeopardy

¶11 Ruiz contends the trial court violated the constitut ional 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 ob ject 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 violatio n 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 acquitta l during trial, and the

counts w ere 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), St ate 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 counse l. 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 reflecte d 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, rel ying 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 reflect ed both the dismissal and

the reversal after a recess

. Id. at 422, 885 P.2d at 110. Finally, in

M usgrove , the defendant moved for a judgment of acquittal

, and theSTATE 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 indica ted 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 ac quittal. Id. We distinguish ed 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

Ybave 3 had not take n 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

ac quittal 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 Coun ts 2 and 4.”

¶15 He re, 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 happ en, based on present events or circumstances.” Go

, Oxford English Dictionary Online ( Oxford Univ. Press 2015 )

. The statement may be

3 The 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 i s 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

4 A 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 ora l statement.

5 We observe that our supreme court has not def initively

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 lega l 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 tr anscript 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 reces s but before trial progressed). Nonetheless, we are generally bound b y 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

Disposit ion

¶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.