 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please see
 2   Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please
 3   also note that this electronic memorandum opinion may contain computer-generated errors or other
 4   deviations from the official paper version filed by the Court of Appeals and does not include the
 5   filing date.

 6        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 7 STATE OF NEW MEXICO,

 8          Plaintiff-Appellee,

 9 v.                                                                                  NO. 31,315

10 JONATHAN STANDIFER,

11          Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF ROOSEVELT COUNTY
13 Drew D. Tatum, District Judge

14 Gary K. King, Attorney General
15 Santa Fe, NM

16 for Appellee

17 Jacqueline L. Cooper, Acting Chief Public Defender
18 Kimberly Chavez Cook, Assistant Appellate Defender
19 Santa Fe, NM

20 for Appellant

21                                 MEMORANDUM OPINION

22 VANZI, Judge.
 1        Defendant appeals his convictions arising from a domestic dispute.              In

 2 particular, he attacks the sufficiency of the evidence to support the conviction for false

 3 imprisonment. In our notice, we proposed to affirm. Defendant has timely responded.

 4 We have considered his arguments and not being persuaded, we affirm.               In our

 5 notice, we identified the standard of review and pointed to the evidence that we

 6 believed supported the conviction. After Defendant punched Victim, she left their

 7 residence. [MIO 2] She got in a truck and attempted to drive away, but the truck got

 8 stuck. [MIO 2] Victim got out of the truck, intending to walk, but Defendant grabbed

 9 her by the hair and pulled her back into the house. [MIO 3]

10        Defendant makes two arguments in response. First, he contends that this

11 conduct did not rise to the level of “restraint” called for by the false imprisonment

12 statute. He argues that although he did pull her back into the house, that is not the

13 reason that she stayed in the house. [MIO 5] We do not believe that Defendant needed

14 to be the cause of Victim staying in the house. Rather, the element of restraining or

15 confining was met by Defendant’s actions of pulling her back to the residence when

16 she did not want to go there. The fact that Defendant was trying to smooth things over

17 while he was pulling her back to the house does not change the fact that she did not

18 want to go, and he was making her do so. That is all that is required by the term

19 “restrain.”


                                               2
 1        Second, Defendant argues that the restraint was incidental to the battery, and

 2 thus, there is no independent evidence to support the charge of false imprisonment.

 3 In making this argument, Defendant relies on State v. Garcia, 2009-NMCA-107, 147

 4 N.M. 150, 217 P.3d 1048, and State v. Mares, 112 N.M. 193, 812 P.2d 1341 (Ct. App.

 5 1991). Both of those cases were argued as unit of prosecution double jeopardy issues

 6 where a defendant was convicted of multiple violations of the same criminal statute.

 7 The question in such cases is “whether the defendant’s acts are separated by sufficient

 8 indicia of distinctness to justify multiple punishments under the same statute.”

 9 Garcia, 2009-NMCA-107, ¶ 8. Those cases are not persuasive where the question

10 here is whether there is sufficient evidence to support an entirely different crime.

11        Defendant appears to be conflating double jeopardy jurisprudence with

12 sufficiency of the evidence claims. Although unit of punishment double jeopardy

13 analysis requires a determination of whether there is sufficient evidence of separate

14 acts, we will not use double jeopardy jurisprudence to determine whether there is

15 sufficient evidence to support a conviction.

16        Defendant argues, citing several out of state authorities, that restraint that is

17 incidental to an underlying offense is not sufficient to support a separate kidnaping or

18 false imprisonment charge. [MIO 7-8] He argues that the restraint should have a

19 significance of its own, and the jury should be so instructed. Defendant argued to the


                                              3
 1 jury that his pulling Victim back to the house was simply a continuation of the

 2 physical contact establishing the battery charge and that there was no separate

 3 evidence to support false imprisonment. The jury was unconvinced as it convicted

 4 him of false imprisonment.

 5        We do not believe that the facts support Defendant’s argument that the restraint

 6 was simply incidental to the battery. The battery had occurred in the residence.

 7 Victim left the residence, got into her truck, and attempted to drive away. The battery

 8 was concluded at that point. Defendant’s action of grabbing Victim’s hair and pulling

 9 her back into the residence when she attempted to walk away is separate from the

10 battery that had occurred earlier in the house.

11        For the reasons stated herein and in the notice of proposed disposition, we

12 affirm.

13        IT IS SO ORDERED.

14                                         __________________________________
15                                         LINDA M. VANZI, Judge

16 WE CONCUR:



17 _________________________________
18 RODERICK T. KENNEDY, Judge




                                              4
1 _________________________________
2 MICHAEL E. VIGIL, Judge




                                  5
