State v. Roberson

• Court: Court of Appeals of North Carolina
• Decided: June 17, 2026
• Docket: 25-619
• Status: Unpublished
• Author: Judge Tom Murry

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA25-619

Filed 17 June 2026

Hertford County, Nos. 23CR000135-450, 23CR228495-450, 23CR228487-450, 23CR000134-450

STATE OF NORTH CAROLINA

v.

MARTY BRYAN ROBERSON, Defendant.

Appeal by Defendant from judgments entered 30 January 2024 by Judge

William D. Wolfe in Hertford County Superior Court. Heard in the Court of Appeals

29 January 2026.

Attorney General Jeff Jackson, by Special Deputy Attorney General Amanda J. Reeder, for the State.

Appellate Defender Glenn Gerding, by Assistant Appellate Defender Candace Washington, for Defendant–Appellant.

MURRY, Judge.

Marty B. Roberson (Defendant) appeals from judgments entered upon guilty

verdicts for four counts of sexual battery, four counts of indecent liberties with a child,

and two counts of second-degree kidnapping. Defendant claims that the trial court

erred by failing to declare a mistrial ex mero motu after the State’s expert witness STATE V. ROBERSON

Opinion of the Court

impermissibly vouched for the victim’s credibility. Defendant further claims that his

counsel’s failure to object to the testimony and move for mistrial amounts to

ineffective assistance of counsel (IAC). For the reasons below, this Court holds that

the trial court did not prejudicially err by declining to declare a mistrial ex mero motu

and that Defendant did not receive IAC.

I. Background

On 27 February 2023, a grand jury indicted Defendant for communicating

threats, four counts of sexual battery, four counts of indecent liberties with a child,

four counts of statutory sexual offense with a person fifteen years of age or younger,

and four counts of first-degree kidnapping.1 The matter came on for trial on 2 January

2024.

At trial, the State’s evidence tended to show that the then-thirteen-year-old

victim visited her grandmother’s home, where her aunt also lived, “almost every day.”

Defendant would also visit the home often because he had a romantic relationship

with the victim’s aunt. In May 2022, Defendant grabbed the victim and pushed her

against the couch in her grandmother’s house, holding her down as he touched her

breasts under her shirt. A few weeks later, Defendant pushed the victim against the

kitchen sink and touched her breasts and genitals under her clothes, stopping only

1 The trial court granted Defendant’s pre-trial motion to dismiss as to the charges for communicating threats, statutory sexual offense with a person fifteen years of age or younger, and first-degree kidnapping. All other charges proceeded to trial.

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when the victim’s aunt entered the house. The victim did not tell anyone about either

incident because she was “scared” and Defendant threatened to hurt her family

members if she told them.

In July 2022, Defendant again touched the victim’s breasts on the couch in her

grandmother’s home, kissing her face and neck as she told him to “get off of” her.

When the victim’s aunt approached from outside, Defendant released the victim.

Defendant again touched the victim’s breasts under her shirt in November 2022 while

she was sitting in her grandmother’s living room, pushing her down onto a chair when

she attempted to leave. Finally, in December 2022, while the victim was getting food

in the kitchen, Defendant knocked her plate over, grabbed her, and pushed her

against the sink to face him. Then, he forced her to touch his genitals, digitally

penetrated her, and rubbed her breasts, stopping only when a family member came

in from outside to use the bathroom.

Following this incident, the victim sent a text message to her cousin stating

that Defendant “tried to rape” her when no one else was around, which the trial court

admitted into evidence. In February 2023, during a panic attack in which her mother

“kept asking . . . what was wrong,” the victim finally told her mother that Defendant

had inappropriately touched her. The next morning, the victim’s father took her to

the Hertford County Sheriff’s office, where a sheriff interviewed her as part of a

sexual-assault investigation. At trial, the State played body-camera footage of that

interview to the jury, and the sheriff testified to believing the victim due to her

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“emotions” and the level of detail in her recollection. Defendant did not object to either

the body-camera footage or to the sheriff’s testimony.

Following the interview, nurse practitioner Kendall Maready conducted a

child-abuse medical evaluation on the victim, which yielded no physical signs of

injury. However, the medical report from that evaluation found that the victim

“exhibited changes in mood and behavior including anxiety, depressed mood, and a

previous suicide attempt which she directly related to being touched inappropriately

by [Defendant].” At trial, Nurse Maready testified regarding a perpetrator’s grooming

process of a child sexual-abuse victim and the common occurrence of delayed

disclosure in these cases. In response to the State’s question about the medical

report’s diagnosis, Nurse Maready replied, “We have confirmed child sexual abuse

and confirmed—,” before the trial court interrupted her mid-sentence and instructed

the jury to “disregard that answer.” Outside the jury’s hearing, the trial court

instructed the State’s attorney to redact from the medical report the “entire block

about diagnoses, both physical and mental,” and to “make copies” for the jurors’

consideration “so that it’s less obvious” that the diagnostic section “has been whited

out.”

Defendant testified in his own defense and denied touching the victim

inappropriately at any time. At the charge conference, the trial court denied the

State’s requested jury instruction on the admissibility of Nurse Maready’s opinion

testimony “only for the limited purpose of corroborating the victim’s testimony.”

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Following jury deliberations that afternoon and the following morning, the jury

returned a verdict finding Defendant guilty of four counts of sexual battery, four

counts of taking indecent liberties with a child, and two counts of second-degree

kidnapping. At sentencing, the trial court found Defendant to be a prior record level

III and sentenced him to 73–144 months’ imprisonment. Defendant timely appealed.

II. Jurisdiction

This Court has jurisdiction over Defendant’s appeal from the trial court’s final

judgment under N.C.G.S. §§ 7A-27, 15A-1444. See N.C.G.S. § 7A-27(b) (2025) (final

judgment of a trial court); id. § 15A-1444(a) (pleaded not guilty but found guilty). IAC

claims generally “should be considered through motions for appropriate relief and not

on direct appeal.” State v. Stroud, 147 N.C. App. 549, 553 (2001). But because “the

cold record reveals that no further investigation is required,” this Court also has

jurisdiction to determine Defendant’s IAC claim on direct review. State v. Fair, 354

N.C. 131, 166 (2001).

III. Analysis

Defendant argues that (1) the trial court erred by failing to declare a mistrial

ex mero motu when Nurse Maready impermissibly vouched for the victim’s credibility,

and (2) he received IAC due to his counsel’s failure to object to the testimony and

move for mistrial. For the following reasons, we hold that the trial court did not

prejudicially err by failing to declare a mistrial ex mero motu and that Defendant did

not receive IAC.

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A. Nurse Maready’s Testimony

First, Defendant argues that the trial court erred by failing to declare a

mistrial ex mero motu when Nurse Maready’s testimony impermissibly vouched for

the victim’s credibility. A trial court “may declare a mistrial at any time during the

trial” and “must declare a mistrial upon the defendant’s motion if . . . an error” at

trial “result[s] in substantial and irreparable prejudice to the defendant’s case.”

N.C.G.S. § 15A-1061 (2025). Because the assessment of “whether substantial and

irreparable prejudice has occurred lies within the sound discretion” of the trial court,

we do “not . . . disturb[ ]” its decision “absent a[n] . . . abuse of [that] discretion.” State

v. Thomas, 350 N.C. 315, 341 (1999).

At the outset, we note that Defendant did not object at trial to the introduction

of the challenged testimony, which ordinarily would fail to preserve the issue for

review. See N.C. R. App. P. 10(a)(1). But “[a] party does not fail to preserve an issue

for appellate review . . . where the trial court acts on its own motion without prior

notice and thereby denies the party the opportunity to object.” In re R.S.H., 383 N.C.

334, 338 (2022). Here, the trial transcript reflects that the trial court interrupted the

testifying witness mid-sentence and immediately instructed the jury to “disregard

that answer.” Because the trial court acted immediately and “on its own motion” to

issue a curative instruction to the jury, and Defendant lacked “the opportunity to

object,” this issue is preserved for review.

To merit a mistrial, a movant must show two things: “(1) the evidence provided

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at trial was prejudicial[,] and (2) the prejudicial evidence could not be cured by a

curative instruction.” State v. Crisp, 297 N.C. App. 400, 410 (2024). An error is

prejudicial when “there is a reasonable possibility that, had the error in question not

been committed, a different result would have been reached at the trial out of which

the appeal arises.” N.C.G.S. § 15A-1443(a). To determine whether an instruction

sufficiently cures any prejudice, we consider “the nature of the evidence and its

probable influence upon the minds of the jury in reaching a verdict.” State v.

Strickland, 229 N.C. 201, 207 (1948). Our courts regularly “presume[ ] that jurors . . .

understand[ ] and comply[ ] with instructions” given to them by the trial court. Crisp,

297 N.C. App. at 411. Thus, a trial court “ordinarily cure[s]” the admission of

incompetent evidence by “withdraw[ing it] . . . and instruct[ing] the jury not to

consider it.” Id. In this circumstance, a mistrial is “appropriate only when . . . such

serious improprieties . . . would make . . . a fair and impartial verdict under the law”

“impossible” from that point forward. State v. Black, 328 N.C. 191, 200 (1991).

Our Rules of Evidence permit expert opinion testimony of “scientific, technical

or other specialized knowledge [that] will assist the trier of fact to understand the

evidence or determine a fact in issue.” N.C. R. Evid. 702(a). In child-sexual-abuse

cases, our Supreme Court has allowed expert opinion testimony regarding the

characteristics of sexually abused children and whether a particular child exhibits

similar characteristics. See State v. Stancil, 355 N.C. 266, 267 (2002) (allowing expert

testimony on “profiles of sexually abused children” and victim’s similar symptoms);

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State v. Kennedy, 320 N.C. 20, 32 (1987) (allowing expert testimony on “behavior

patterns of sexually abused children” to help jury assess victim’s credibility). And

when the State introduces “physical evidence consistent with sexual abuse,” then a

medical expert may “render an opinion . . . that sexual abuse has in fact occurred”

under Rule 702. State v. Dixon, 150 N.C. App. 46, 52 (2002). But “in the absence of

physical evidence to support a diagnosis of sexual abuse, expert testimony that sexual

abuse has in fact occurred is not admissible because it is an impermissible opinion

regarding the victim’s credibility.” Id.

Here, the medical report concludes that the victim’s medical examination “does

not show signs of injury” but notes that the absence “is not unusual given the type of

contact described” and the time that had elapsed. Despite the lack of physical

evidence, the State questioned Nurse Maready concerning the diagnosis in the

medical report, to which she replied, “We have confirmed child sexual abuse—,”

before the trial court interrupted her and instructed the jury to disregard her answer.

Because the State presented no physical evidence of sexual abuse, Nurse Maready’s

testimony diagnosing sexual abuse was impermissible. Thus, we must next determine

whether this impermissible testimony prejudiced Defendant’s case. See N.C.G.S.

§ 15A-1061.

Defendant argues that Nurse Maready’s impermissible opinion testimony

“vouched for . . . [the victim’s] credibility and resolved a central issue for the jury,”

thus preventing a “fair and impartial verdict.” In support, Defendant cites to State v.

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Couser, 163 N.C. App. 727 (2002), in which this Court held that impermissible

medical opinion testimony of a “probable sexual abuse” diagnosis likely impacted the

jury verdict where the “central issue” was the victim’s credibility and the victim’s

testimony was “the only direct evidence implicating [the] defendant.” Id. at 730–31.

There, the evidence consisted of testimony by the victim and others who had spoken

with her, a medical evaluation finding inconclusive abrasions on her body, and the

defendant’s negative results from a rape-suspect kit. Id. at 730. Because the evidence

against the defendant was not so “overwhelming” that the trial court could conclude

that the testimony did not prejudice the jury, see Stancil, 355 N.C. at 267, the trial

court remanded the case for a new trial, Couser, 163 N.C. App. at 734.

Unlike in Stancil, the State presented extensive and “overwhelming” evidence

of the charged offenses here. Stancil, 355 N.C. at 267. The victim testified to multiple

instances between May and December 2022 of Defendant touching her

inappropriately, holding her down to touch her breasts and genitals, and digitally

penetrating her, as well as the panic attacks she experienced following these

incidents. The victim’s cousin and mother corroborated this testimony, and the trial

court admitted into evidence the victim’s text message to her cousin that Defendant

“tried to rape” her when no one else was around. The sheriff who conducted the sexual

assault investigation testified—without objection—to interviewing the victim and

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believing her due to her emotional state and the level of detail in her recollection.2

The trial court also played his body-camera footage for the jury. Finally, the trial

court permitted the jury to consider the nondiagnostic portion of the medical report,

which found that the victim “exhibited changes in mood and behavior including

anxiety, depressed mood, and a previous suicide attempt which she directly related

to being touched inappropriately by [Defendant].” This abundant evidence of

Defendant’s guilt renders it improbable that the challenged testimony caused him

“substantial and irreparable prejudice.” Thomas, 350 N.C. at 341.

Further, the trial court immediately issued a curative instruction upon hearing

Nurse Maready’s impermissible opinion testimony and took additional steps on its

own initiative to prevent any prejudicial effect. After instructing the jury to

“disregard” the testimony, the trial court conferenced with counsel for both sides

outside the jury’s hearing and instructed the State’s attorney to redact the “entire

block about diagnoses, both physical and mental” from the medical report. After the

State’s attorney redacted this section, the trial court instructed her to “make copies”

for the jurors’ consideration “so that it’s less obvious that [it] has been whited out.”

At the charge conference, the trial court also chose not to draw attention in the jury

instructions to the improper testimony by denying the State’s requested instruction

on its admissibility “only for the limited purpose of corroborating the victim’s

2 On appeal, Defendant does not challenge this testimony as improper.

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testimony.” Because the trial court cured any error by giving the curative instruction,

no prejudice resulted to Defendant. Accordingly, we hold that the trial court soundly

exercised its discretion in not declaring a mistrial and thus did not prejudicially err.

B. Ineffective Assistance of Counsel

Defendant also argues that he received IAC due to his trial counsel’s failure to

object to the impermissible opinion testimony and move for mistrial. A defendant

bringing an IAC claim must show both that (1) “defense counsel’s performance was

deficient” and that (2) “the deficient performance prejudiced the defense.” State v.

Braswell, 312 N.C. 553, 562 (1985) (quoting Strickland v. Washington, 466 U.S. 668,

687 (1984)). To the first prong, the defendant must “show[ ] that counsel made error

so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant

by the Sixth Amendment.” Id. Establishing prejudice “requires showing that

counsel’s errors were so serious as to deprive the defendant of a fair trial”; in other

words, that there was “a reasonable probability that, but for counsel’s errors, there

would have been a different result in the proceedings.” Id. at 562–63.

As discussed above, the trial court interrupted Nurse Maready mid-sentence

and immediately, on its own motion, issued a curative instruction to the jury. As a

result, defense counsel lacked “the opportunity to object” to the impermissible

testimony, In re R.S.H., 383 N.C. at 338, and his performance was not deficient for

this reason. Furthermore, the State presented abundant evidence for the jury to find

Defendant guilty of the charged offenses absent the challenged testimony. Even

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assuming arguendo that defense counsel’s failure to move for mistrial constituted

error, there was no “reasonable probability” of a different jury verdict that would

render any such error prejudicial to Defendant. Id. at 563. Thus, we reject

Defendant’s argument and dismiss his IAC claim.

IV. Conclusion

For the reasons above, this Court holds the trial court did not prejudicially err

by declining to declare a mistrial ex mero motu and dismisses Defendant’s IAC claim.

NO PREJUDICIAL ERROR; DISMISSED.

Judges COLLINS and FLOOD concur.

Report per Rule 30(e).

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