State v. Gonzalez, No. COA18-228
| Docket Nº | No. COA18-228 |
| Citation | 263 N.C.App. 527, 823 S.E.2d 886 |
| Case Date | January 15, 2019 |
| Court | Court of Appeal of North Carolina (US) |
263 N.C.App. 527
823 S.E.2d 886
STATE of North Carolina
v.
Flora Riano GONZALEZ
No. COA18-228
Court of Appeals of North Carolina.
Filed: January 15, 2019
Attorney General Joshua H. Stein, by Special Deputy Attorney General Anne M. Middleton, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Katherine Jane Allen, for defendant.
DIETZ, Judge.
Defendant Flora Riano Gonzalez appeals her conviction for felony child abuse, arguing that the trial court committed plain error by improperly instructing the jury on the definition of the term "sexual act." This argument is squarely precluded by our decision in State v. McClamb , 234 N.C. App. 753, 760 S.E.2d 337 (2014). But our review of this case became more difficult when, several months ago, this Court issued its opinion in State v. Alonzo , ––– N.C. App. ––––, ––––, 819 S.E.2d 584, 587 (2018).
Alonzo effectively overruled McClamb after concluding that McClamb had effectively overruled another, earlier decision. We ordered supplemental briefing from the parties to address Alonzo and, specifically, to address the growing trend among panels of our Court to overrule or refuse to follow precedent based on principles arising from our
Supreme Court's decision in In re Civil Penalty , 324 N.C. 373, 379 S.E.2d 30 (1989).
As explained below, In re Civil Penalty does not permit panels of this Court to disregard existing precedent because the panel believes that precedent improperly narrowed or distinguished other, earlier precedent. Thus, because the Supreme Court stayed the mandate in Alonzo —meaning it does not yet have any precedential effect—and because McClamb is controlling precedent that this Court must follow, we reject Gonzalez's arguments and find no error in the trial court's judgments.
Facts and Procedural History
Beginning in 2012, Flora Riano Gonzalez arranged for her twelve-year-old daughter to work as a prostitute, meeting men and having sexual intercourse in exchange for money. This continued for several years. Many men who had sex with Gonzalez's daughter used a condom but some did not. Gonzalez's daughter later became pregnant. Gonzalez
reported her daughter's pregnancy to the police and claimed that she had been abducted and raped by four men. Law enforcement took Gonzalez's daughter to a health clinic where she was treated for chlamydia and underwent an abortion.
Gonzalez's daughter later began a steady relationship with a man when she was around sixteen years old. She became pregnant with her boyfriend's child. At that point, Gonzalez's daughter became concerned that Gonzalez would begin prostituting another of her children, who was now twelve years old. Gonzalez's daughter confided in a friend, who helped her meet with law enforcement to tell her story. The State arrested Gonzalez and charged her with felony child abuse by prostitution, felony child abuse by sexual act, human trafficking, and sexual servitude of a child. The case went to trial.
The jury acquitted Gonzalez of human trafficking, but found her guilty of both counts of felony child abuse and of sexual servitude of a child. The trial court sentenced her to consecutive terms of 25 to 39 months in prison for each of the child abuse convictions, and to another consecutive term of 92 to 120 months in prison for the sexual servitude conviction. Gonzalez timely appealed.
Analysis
Gonzalez argues that the trial court committed plain error when it instructed the jury that the phrase "sexual act" in the felony child abuse statute meant "an inducement by the defendant of an immoral or indecent touching by the child for the purpose of arousing or gratifying
sexual desire." Gonzalez contends that the court should have used a much narrower definition of "sexual act" that does not include vaginal intercourse. Gonzalez did not object to the court's instruction at trial and concedes that we review this issue for plain error.
The statute under which Gonzalez was charged, N.C. Gen. Stat. § 14-318.4(a2), is found in a portion of the criminal code addressing "Protection of Minors." The statute, titled "Child abuse a felony" provides as follows: "Any parent or legal guardian of a child less than 16 years of age who commits or allows the commission of any sexual act upon the child is guilty of a Class D felony." N.C. Gen. Stat. § 14-318.4(a2). Importantly, the statute does not define the term "sexual act" and that phrase is not defined anywhere else in the subchapter.
In a separate subchapter of the General Statutes, in an article titled "Rape and Other Sex Offenses," there is a definition of the phrase "sexual act" that applies "[a]s used in this Article." N.C. Gen. Stat. § 14-27.20(4). That definition includes various forms of sexual activity but expressly excludes "vaginal intercourse":
"Sexual act" means cunnilingus, fellatio, analingus, or anal intercourse, but does not include vaginal intercourse. Sexual act also means the penetration, however slight, by any object into the genital or anal opening of another person's body: provided, that it shall be an affirmative defense that the penetration was for accepted medical purposes.
Id.
The distinction between vaginal intercourse and other sexual acts exists in this section of our criminal statutes because the crime of rape, which...
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State v. Perkins, COA20-572
...involved narrowing or distinguishing an earlier controlling precedent-even one from the Supreme Court[.]") (quoting State v. Gonzalez, 263 N.C.App. 527, 531, 823 S.E.2d 886, 888-89 (2019)). Neither of my colleagues would reach the issue of whether the orders violated the Fourth Amendment. ¶......
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State v. Perkins, COA20-572
...involved narrowing or distinguishing an earlier controlling precedent-even one from the Supreme Court[.]") (quoting State v. Gonzalez, 263 N.C.App. 527, 531, 823 S.E.2d 886, 888-89 (2019)). Neither of my colleagues would reach the issue of whether the orders violated the Fourth Amendment. ¶......
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State v. Perkins, COA20-572
...involved narrowing or distinguishing an earlier controlling precedent-even one from the Supreme Court[.]") (quoting State v. Gonzalez, 263 N.C.App. 527, 531, 823 S.E.2d 886, 888-89 (2019)). Neither of my colleagues would reach the issue of whether the orders violated the Fourth Amendment. ¶......
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State v. Perkins, COA20-572
...involved narrowing or distinguishing an earlier controlling precedent-even one from the Supreme Court[.]") (quoting State v. Gonzalez, 263 N.C.App. 527, 531, 823 S.E.2d 886, 888-89 (2019)). Neither of my colleagues would reach the issue of whether the orders violated the Fourth Amendment. ¶......
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State v. Perkins, COA20-572
...involved narrowing or distinguishing an earlier controlling precedent-even one from the Supreme Court[.]") (quoting State v. Gonzalez, 263 N.C.App. 527, 531, 823 S.E.2d 886, 888-89 (2019)). Neither of my colleagues would reach the issue of whether the orders violated the Fourth Amendment. ¶......
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State v. Perkins, COA20-572
...involved narrowing or distinguishing an earlier controlling precedent-even one from the Supreme Court[.]") (quoting State v. Gonzalez, 263 N.C.App. 527, 531, 823 S.E.2d 886, 888-89 (2019)). Neither of my colleagues would reach the issue of whether the orders violated the Fourth Amendment. ¶......
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Poindexter v. Everhart, No. COA19-646
...precedent on the basis that it is inconsistent with earlier decisions of this Court. State v. Gonzalez , ––– N.C. App. ––––, ––––, 823 S.E.2d 886, 888-89 (2019). We are without authority to overturn the ruling of a prior panel of this Court on the same issue. See In re Civil Penalty , 324 N......
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Denney v. Wardson Constr., Inc., No. COA18-667
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