263 N.C. App. 527
N.C. Ct. App.2019Background
- Defendant Flora Riano Gonzalez arranged for her then-12-year-old daughter to engage in prostitution over several years; some encounters involved vaginal intercourse and some used condoms.
- Daughter later became pregnant, reported the abuse, was treated for chlamydia, and underwent an abortion; Gonzalez reported a false abduction/rape story to police.
- Gonzalez was charged with felony child abuse (by prostitution and by "sexual act"), human trafficking, and sexual servitude of a child; jury acquitted on human trafficking but convicted on the child abuse counts and sexual servitude.
- At trial the court instructed the jury using a definition of "sexual act" that the defendant challenges on appeal as being overly broad because it encompassed vaginal intercourse.
- Gonzalez did not object at trial and therefore raised the claim on appeal as plain error. The Court of Appeals found no plain error and affirmed the convictions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred in defining "sexual act" to include vaginal intercourse for the child-abuse statute | State: jury instructions were proper under controlling precedent | Gonzalez: "sexual act" should be defined narrowly and not include vaginal intercourse | Court: No plain error; followed controlling precedent that treats vaginal intercourse as covered under the statute's application in prior cases |
| Whether this Court should overturn McClamb and instead follow earlier cases (Lark, Stokes) or Alonzo | State: McClamb remains controlling and should be followed; Alonzo lacks precedential effect due to stay | Gonzalez: urges adoption of Alonzo’s reasoning displacing McClamb | Court: Declined to overrule McClamb; panels of Court of Appeals must follow the most recent controlling panel decision unless Supreme Court or irreconcilable, independent lines justify departure |
Key Cases Cited
- State v. McClamb, 234 N.C. App. 753 (N.C. Ct. App. 2014) (held that prior cases did not exclude vaginal intercourse from the child-abuse statute’s "sexual act" meaning and is controlling)
- State v. Lark, 198 N.C. App. 82 (N.C. Ct. App. 2009) (applied sexual-act definition to fellatio and anal intercourse)
- State v. Stokes, 216 N.C. App. 529 (N.C. Ct. App. 2011) (treated digital penetration as a "sexual act" under precedent cited)
- In re Civil Penalty, 324 N.C. 373 (N.C. 1989) (Supreme Court: Court of Appeals panels are bound by prior panels and may not overrule them)
- In re R.T.W., 359 N.C. 539 (N.C. 2005) (acknowledges narrow circumstance allowing departure when two independent, irreconcilable lines developed without awareness)
- State v. Alonzo, 819 S.E.2d 584 (N.C. Ct. App. 2018) (panel declined to follow McClamb and favored earlier precedent, but its mandate was stayed by the Supreme Court and thus lacks precedential effect)