State v. Gonzalez

Decision Date15 January 2019
Docket NumberNo. COA18-228,COA18-228
Citation263 N.C.App. 527,823 S.E.2d 886
Parties STATE of North Carolina v. Flora Riano GONZALEZ
CourtNorth Carolina Court of Appeals

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.

263 N.C.App. 527

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

263 N.C.App. 528

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

823 S.E.2d 887

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

263 N.C.App. 529

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...

To continue reading

Request your trial
11 cases
  • State v. Perkins
    • United States
    • North Carolina Court of Appeals
    • 6 Diciembre 2022
    ...recent, controlling decisions in Carter and Anthony, even though that is what In re Civil Penalty, 324 N.C. 373, 379 S.E.2d 30 (1989), Gonzalez, Upchurch-controlling precedent from our Court-require. See, e.g., In re Civil Penalty, 324 N.C. at 384, 379 S.E.2d at 37 ("Where a panel of the Co......
  • State v. Perkins
    • United States
    • North Carolina Court of Appeals
    • 18 Octubre 2022
    ...recent, controlling decisions in Carter and Anthony, even though that is what In re Civil Penalty, 324 N.C. 373, 379 S.E.2d 30 (1989), Gonzalez, Upchurch-controlling precedent from our Court-require. See, e.g., In re Civil Penalty, 324 N.C. at 384, 379 S.E.2d at 37 ("Where a panel of the Co......
  • State v. Lancaster, COA21-231
    • United States
    • North Carolina Court of Appeals
    • 19 Julio 2022
    ...the "narrowing or distinguishing [of] an earlier controlling precedent – even one from the Supreme Court[.]" State v. Gonzalez , 263 N.C. App. 527, 531, 823 S.E.2d 886, 888 (2019).2 ¶ 15 And while in 1993 our Supreme Court took the occasion in May to explain the common law crime of affray n......
  • Poindexter v. Everhart
    • United States
    • North Carolina Court of Appeals
    • 18 Febrero 2020
    ...higher court." In re Civil Penalty , 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989). This Court recently discussed In re Civil Penalty in State v. Gonzalez and held: In re Civil Penalty stands for the proposition that, where a panel of this Court has decided a legal issue, future panels are bo......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT