State v. GonzalezÂ

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-228
Filed: 15 January 2019
Forsyth County, Nos. 16 CRS 3823, 50851
STATE OF NORTH CAROLINA
v.
FLORA RIANO GONZALEZ
Appeal by defendant from judgments entered 27 April 2017 by Judge Richard
S. Gottlieb in Forsyth County Superior Court. Heard in the Court of Appeals 30
October 2018.
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).
STATE V. GONZALEZ
Opinion of the Court
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
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Opinion of the Court
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
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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 involves vaginal
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intercourse, is treated differently from other sex offense crimes. Compare N.C. Gen.
Stat. § 14-27.21 (First-degree forcible rape) with N.C. Gen. Stat. § 14-27.26 (First-
degree forcible sex offense).
In two earlier cases, this Court applied the definition of “sexual act” found in
N.C. Gen. Stat. § 14-27.20(4) to the felony child abuse statute, without conducting an
analysis of why that definition should apply.1 First, in State v. Lark, 198 N.C. App.
82, 678 S.E.2d 693 (2009), the Court addressed a case involving a defendant who
engaged in fellatio and anal intercourse with his juvenile son. The defendant argued
that the trial court included sexual acts in the jury instructions that were not
supported by the evidence. Id. at 87, 678 S.E.2d at 698. In its analysis, this Court
cited the definition of “sexual act” in N.C. Gen. Stat. § 14-27.20(4) in its determination
that both fellatio and anal intercourse were “sexual acts.” Id. at 88, 678 S.E.2d at 698.
Next, in State v. Stokes, 216 N.C. App. 529, 718 S.E.2d 174 (2011), the Court
addressed a case in which a defendant challenged the sufficiency of the evidence that
he digitally penetrated his juvenile daughter’s vagina. The Court again cited the
definition of “sexual act” in N.C. Gen. Stat. § 14-27.20(4) to conclude that digital
penetration of a vagina is a sexual act. Stokes, 216 N.C. App. at 532, 718 S.E.2d at177–78. Stokes also involved allegations of vaginal intercourse but, in its analysis of
the issue, the Stokes court discussed only the digital penetration. Id.1 The General Assembly recodified these statutes, so their statutory citations vary in these
opinions, but the statutory language remains the same.
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Then, in State v. McClamb, 234 N.C. App. 753, 760 S.E.2d 337 (2014), this
Court squarely addressed the question of whether the phrase “sexual act” in the
felony child abuse statute included vaginal intercourse. In a detailed analysis, the
Court distinguished Stokes, explaining that “Stokes is controlling with respect to the
meaning of the term ‘sexual act’ . . . only in light of the narrow factual circumstances
and legal issue raised therein.” McClamb, 234 N.C. App. at 758, 760 S.E.2d at 341.
The Court concluded that Stokes only addressed the issue of digital penetration and
“did not hold” that the definition of sexual act in the felony child abuse statute
“exclude[s] vaginal intercourse as a sexual act.” Id. The Court also distinguished Lark
in a footnote, explaining that it “is similarly limited to an analysis of fellatio as a
sexual act.” Id. at 758 n.2, 760 S.E.2d at 341 n.2.
Finally, several months ago, this Court addressed this issue again in State v.
Alonzo, __ N.C. App. __, __, 819 S.E.2d 584, 587 (2018). In Alonzo, the Court held that
“there is a conflict between our precedent” in McClamb, Stokes, and Lark. Id.Applying principles that stem from our Supreme Court’s decision in In re Civil
Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989), a breakthrough case that
governs this Court’s review of its own precedent, Alonzo declined to follow McClamb,
concluding “we are bound by our earlier decision in Lark.” Alonzo, __ N.C. App. at __,
819 S.E.2d at 587.
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Our Supreme Court later stayed this Court’s mandate in Alonzo and thus
Alonzo does not yet have any precedential effect. State v. Alonzo, __ N.C. __, 817
S.E.2d 733 (2018). But Gonzalez urges us to adopt the same reasoning applied in
Alonzo, and to hold that McClamb is not good law.
As explained below, we decline to do so because In re Civil Penalty does not
empower us to overrule precedent in this way. What occurred in Lark, Stokes, and
McClamb is the same sequence of events that gave us In re Civil Penalty. In 1968,
the Supreme Court decided a case that limited the power of state agencies to impose
civil penalties under Article IV, Section 3 of the North Carolina Constitution. State
ex rel. Lanier v. Vines, 274 N.C. 486, 497, 164 S.E.2d 161, 167–68 (1968). Later, this
Court distinguished Lanier in a case upholding the power of a state agency to impose
civil penalties under our Constitution. N.C. Private Protective Servs. Bd. v. Gray, Inc.,
87 N.C. App. 143, 146–47, 360 S.E.2d 135, 137–38 (1987). When the issue came before
this Court again a few years later, we declined to follow Gray, holding that Gray
“contradicts the express language, rationale and result of Lanier.” In re Civil Penalty,
92 N.C. App. 1, 13, 373 S.E.2d 572, 579, rev’d, 324 N.C. 373, 379 S.E.2d 30 (1989).
The Supreme Court reversed this Court, holding that “the effect of the
majority’s decision here was to overrule Gray. This it may not do. Where a panel of
the Court of Appeals has decided the same issue, albeit in a different case, a
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subsequent panel of the same court is bound by that precedent, unless it has been
overturned by a higher court.” In re Civil Penalty, 324 N.C. at 384, 379 S.E.2d at 37.
Thus, In re Civil Penalty stands for the proposition that, where a panel of this
Court has decided a legal issue, future panels are bound to follow that precedent. This
is so even if the previous panel’s decision involved narrowing or distinguishing an
earlier controlling precedent—even one from the Supreme Court—as was the case in
In re Civil Penalty. Importantly, In re Civil Penalty does not authorize panels to
overrule existing precedent on the basis that it is inconsistent with earlier decisions
of this Court.
To be sure, our Supreme Court has authorized us to disregard our own
precedent in certain rare situations. See In re R.T.W., 359 N.C. 539, 542 n.3, 614
S.E.2d 489, 491 n.3 (2005). These arise when two lines of irreconcilable precedent
develop independently—meaning the cases never acknowledge each other or their
conflict, as if ships passing in the night. This typically occurs because the panel that
decided the second case was unaware of the holding of the first. Ideally, this would
never happen, but, given the size and complexity of our case law, it does. In that
circumstance, the Supreme Court has authorized us to “follow[] . . . the older of the
two cases” and reject the more recent precedent. Id.This case is governed by In re Civil Penalty, not In re R.T.W. As explained
above, the second of the conflicting decisions at issue here (McClamb) acknowledged
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and distinguished the first (Lark and Stokes). McClamb, 234 N.C. App. at 758 n.2,
760 S.E.2d at 341 n.2. This means In re R.T.W. does not apply. Instead, under In re
Civil Penalty, we must follow McClamb because it is the most recent, controlling case
addressing the question. This, in turn, leads us to conclude that the trial court’s
instructions to the jury in this case were not erroneous, and certainly did not rise to
the level of plain error.
Conclusion
We find no error in the trial court’s judgments.
NO ERROR.
Judges BRYANT and INMAN concur.
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