Appeals panels can't disregard existing precedent.

Byline: Matt Chaney

In keeping with the holding of In re Civil Penalty, individual panels of the North Carolina Court of Appeals cannot disregard existing precedent just because the panel believes it improperly narrowed or distinguished another earlier precedent, the North Carolina Court of Appeals has held.

On the specific issue of the definition of the term "sexual act" as it applies to felony child abuse, Judge Richard Dietz said that the controlling precedent is State v. McClamb, and therefore appellant Flora Gonzalez suffered no error at trial.

Gonzalez's case began when she was charged in 2016 with felony child abuse by prostitution, felony child abuse by sexual act, human trafficking, and sexual servitude of a child after her daughter went to police with allegations that Gonzalez made her perform sex work with strangers from the time she was 12 until she was 16.

At trial, Gonzalez was acquitted of the human trafficking charge, but convicted of the others and sentenced to between 12 and 16 years in prison. On appeal, she argued that the trial court erred in instructing 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." She said the court should have used a narrower definition that excludes vaginal intercourse.

"Sexual act" is not defined in the section of North Carolina General Statutes dealing with felony child abuse. However, in a separate subchapter on rape and other sexual offenses, it is defined as including a number of specific sexual acts, excluding vaginal intercourse.

In two earlier cases, the Court of Appeals applied this definition to the child abuse statute: State v. Lark and State v. Stokes. But the court later found in State v. McClamb that these cases' holdings were limited and that they did not "exclude vaginal intercourse as a sexual act" under the felony child abuse statute.

Then in 2018, another case, State v. Alonzo, held that "there is a conflict between our precedent" in McClamb, Stokes and Lark. Citing In re Civil Penalty, the Court of Appeals declined to follow McClamb and concluded that "we are bound by our earlier decision in Lark."

That decision has since been stayed by the North Carolina Supreme Court and has yet to hear oral arguments. It also does not yet have precedential effect, Dietz said.

"Gonzalez urges us to adopt the same reasoning...