from the Superior Court in Pima County. No. CR20135012003.
The Honorable Deborah Bernini, Judge.
Brnovich, Arizona Attorney General, Joseph T. Maziarz,
Section Chief Counsel, Phoenix, By Tanja K. Kelly, Assistant
Attorney General, Tucson, Counsel for Appellee.
P. Levitt, Tucson, Counsel for Appellant.
Miller authored the opinion of the Court, in which Presiding.
Judge Vá squez and Chief Judge Eckerstrom concurred.
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.
and Procedural Background
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.
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.
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.
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.
to Suppress Stop
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  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 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).
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, 88 S.Ct. 1868, 20 L.Ed.2d 889
(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 alsoUnited States v. Mendenhall, 446
U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (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), quotingOrnelas v.
United States, 517 U.S. 690, 693, 116 S.Ct. 1657, 134
L.Ed.2d 911 (1996); see alsoState v.
Winegar, 147 Ariz. 440, 446, 711 P.2d 579, 585 (1985)
(" '[I]f police have a reasonable suspicion,
grounded in ...