Appeal from the Superior Court in Pima County No. CR20135012003 The Honorable Deborah Bernini, Judge
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.
Judge Miller authored the opinion of the Court, in which Presiding Judge Vásquez and Chief Judge Eckerstrom concurred.
¶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 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 DNA 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 Terrystop 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 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 ...