                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).
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                                 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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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 at

177–78. 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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