Finding itself bound by its prior decision in this felony child abuse case, the Court of Appeals rejected the defendant’s argument that the trial court committed plain error by improperly instructing the jury on the definition of the term “sexual act.” The defendant was charged under G.S. 14-318.4(a2). That statute does not define the term “sexual act” as used in the proscribed offense. That term is however defined in a separate subchapter of the General Statutes—G.S. 14-27.20(4)--to include various forms of sexual activity but excluding vaginal intercourse. The court noted that in two earlier cases--State v. Lark, 198 N.C. App. 82 (2009), and State v. Stokes, 216 N.C. App. 529 (2011)--it had applied the definition of sexual act found in G.S. 14-27.20(4) to felony child abuse without explaining why it did so. Then, in State v. McClamb, 234 N.C. App. 753 (2014), the court squarely addressed the question of whether the term sexual act as used in the child abuse statute included vaginal intercourse. McClamb distinguished Stokes, explaining that it only addressed the issue of digital penetration and did not hold that the definition of sexual act in the child abuse statute excludes vaginal intercourse. McClamb also distinguished Lark, explaining that it was limited to an analysis of fellatio as a sexual act. The court addressed the issue again in State v. Alonzo, __ N.C. App. __, __, 819 S.E.2d 584, 587 (2018). That decision noted a conflict between McClamb, Stokes, and Lark, and applying In re Civil Penalty, 324 N.C. 373 (1989), declined to follow McClamb, concluding that it was bound by the earlier Lark decision. Because the state Supreme Court later stayed the mandate in Alonzo, that case does not yet have any precedential effect. The court declined the defendant’s invitation to adopt the same reasoning applied in Alonzo and conclude that McClamb is not good law, finding that In re Civil Penalty “does not empower us to overrule precedent in this way.” It explained: 

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.

The court went on to note that the Supreme Court has authorized it to disregard its own precedent in certain rare situations, such as when two lines of irreconcilable precedent developed independently. But this is not such a case. The court concluded that under In re Civil Penalty it must follow McClamb “because it is the most recent, controlling case addressing the question.” Thus, the trial court’s instructions were not erroneous.