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State v. Gonzalez

Court of Appeals of North Carolina

January 15, 2019

STATE OF NORTH CAROLINA
v.
FLORA RIANO GONZALEZ

          Heard in the Court of Appeals 30 October 2018.

          Appeal 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.

          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 ...


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