in the Court of Appeals 30 October 2018.
by defendant from judgments entered 27 April 2017 by Judge
Richard S. Gottlieb in Forsyth County, Nos. 16 CRS 3823,
50851 Superior Court.
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.
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).
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).
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.
and Procedural History
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
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.
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.
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