Wilson v. State of Florida
CourtDistrict Court of Appeal of Florida
Date FiledOctober 23, 2026
Docket2D2025-0470
StatusPublished
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Full Opinion
DISTRICT COURT OF APPEAL OF FLORIDA
SECOND DISTRICT
BRIAN JOHN WILSON,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 2D2025-0470
October 23, 2026
Appeal from the Circuit Court for Pinellas County; Philip J. Federico,
Judge.
Blair Allen, Public Defender, and Maureen E. Surber, Assistant Public
Defender, Bartow, for Appellant.
James Uthmeier, Attorney General, Tallahassee, and William C.
Shelhart, Assistant Attorney General, Tampa, for Appellee.
SILBERMAN, Judge.
Brian John Wilson was charged by third amended information with
attempted sexual battery on a mentally defective person and sexual
battery on a mentally defective person. The victim is a developmentally
disabled adult whose mental ability is childlike. Following a jury trial,
Wilson was found guilty of battery, a lesser included offense to attempted
sexual battery, and was acquitted of sexual battery. Based on Wilson's
prior record, he was sentenced to ten years' imprisonment as a habitual
felony offender.
Wilson challenges his judgment and sentence and raises three
issues on appeal, none of which supports reversal. We write to address
two of the issues. First, he contends that the trial court erred by
allowing the mentally disabled victim to testify at trial holding a teddy
bear. Second, he argues that his constitutional right to trial by jury was
violated because he was tried by a six-person jury rather than a twelve-
person jury.
I. Victim Testifying while Holding a Teddy Bear
At trial, the victim took the witness stand holding an approximately
twelve-by six-inch teddy bear. Over objection, the trial court allowed the
victim to testify holding the bear. Absent citations to any authority in
support of his position, Wilson asks this court to conclude that the trial
court abused its discretion by overruling his objection. Although the
victim is developmentally disabled, he argues that the "witness in this
case is an adult" and that the "jury was introduced to a witness who
immediately evinced sympathy to the detriment of a fair trial for Wilson."
We begin by noting that "matters relating to examination of
witnesses are within the trial court's sound discretion." Tormey v. Trout,
748 So. 2d 303, 306 (Fla. 4th DCA 1999) (citing Metropolitan Dade
County v. Zapata, 601 So. 2d 239, 243 (Fla. 3d DCA 1992)). And Florida
law provides special protections in proceedings involving a person with
an intellectual disability. Under section 92.55(5), Florida Statutes
(2025), a trial court "may set any other conditions it finds just and
appropriate when taking the testimony of . . . a person who has an
intellectual disability . . . in any proceeding involving a sexual offense."
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While we, too, have been unable to find Florida case law addressing
this precise issue, other courts have concluded that a trial court does not
abuse its discretion when it allows victims to hold teddy bears or comfort
items during trial testimony. See, e.g., State v. Richter, 27 N.W.3d 777,
783-84 (S.D. 2025); State v. Powell, 318 S.W.3d 297, 303-04 (Mo. Ct.
App. 2010); see also State v. Brick, 163 Wash. App. 1029, at *2 (Wash.
Ct. App. 2011) (concluding that "[n]o authority requires the court to hold
a hearing or to make a finding of necessity" when a victim testifies
holding a "security object"). Under the plain language of section
92.55(5), we conclude the trial court did not abuse its discretion by
allowing the mentally disabled victim to testify at trial while holding the
teddy bear.
II. Constitutional Challenge
After Wilson filed his initial brief and the State filed its answer
brief, he filed a motion requesting leave to file a supplemental brief to
challenge his conviction by a six-person jury. The impetus for his motion
is a recent case in which it appears that the United States Supreme
Court will reconsider whether it is a violation of the United States
Constitution for a criminal case to be heard by a six-person jury rather
than a twelve-person jury. See Kian v. Florida, 421 So. 3d 439 (Fla. 4th
DCA 2025), cert. granted, 146 S. Ct. 2732 (2026). We granted his motion
and have received the parties' supplemental briefs.
Wilson argues that the United States Constitution requires a
twelve-person jury in criminal cases and that section 913.10, Florida
Statutes (2025), which authorizes a six-person jury to try noncapital
criminal cases, is unconstitutional. Wilson acknowledges that he did not
raise this issue in the trial court or in his initial briefing, but he argues
that a facial constitutional challenge can be raised for the first time on
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appeal. See Chang v. State, 423 So. 3d 437, 448 n.4 (Fla. 2d DCA 2025)
(concluding that the appellant was not precluded from raising a facial
constitutional challenge for the first time on appeal because when he
filed his initial brief, no appellate court had held the challenged statute
to be unconstitutional (citing Harvey v. State, 848 So. 2d 1060, 1063-64
(Fla. 2003))). Moreover, "[a] facial challenge to a statute's constitutional
validity may be raised for the first time on appeal only if the error is
fundamental." State v. Johnson, 616 So. 2d 1, 3 (Fla. 1993) (citing
Trushin v. State, 425 So. 2d 1126 (Fla. 1982))). Under existing law, no
fundamental error occurred here. See Jack v. State, 349 So. 3d 925, 927
(Fla. 1st DCA 2022).
Wilson recognizes that the United States Supreme Court has held
that the "refusal to impanel more than the six [jury] members provided
for by Florida law" does not violate a defendant's Sixth Amendment rights
as applied to the States through the Fourteenth Amendment. See
Williams v. Florida, 399 U.S. 78, 86 (1970); see also Gonzalez v. State,
982 So. 2d 77, 85-86 (Fla. 2d DCA 2008) ("[T]his court is bound by
existing Supreme Court precedent to hold that the six-person jury that
convicted him was not, by sheer virtue of its size, constitutionally
deficient."); Chavers v. State, 359 So. 3d 846, 847-48 (Fla. 1st DCA 2023)
("[F]ive decades ago, the United States Supreme Court upheld the
constitutionality of Florida's six-person jury system. . . . Williams was
correctly decided and remains controlling precedent today.").
Nevertheless, based on the Supreme Court's grant of certiorari in Kian v.
Florida, Wilson argues that we should hold that section 913.10 is
unconstitutional and reverse his conviction.
In response, the State makes several arguments, the key one being
that existing precedent precludes granting relief to Wilson. We agree and
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reject Wilson's argument that we are free to disregard existing precedent
in order to hold that he was entitled to a twelve-person jury and that
section 913.10 is unconstitutional. See Serrano-Delgado v. State, 392
So. 3d 251, 254 (Fla. 2d DCA 2024) ("We are bound by precedent . . . .
Therefore, the use of a six-person jury at Mr. Serrano-Delgado's
[noncapital case] did not constitute a violation of federal or Florida
constitutional rights."); Morales-Alaffita v. State, 376 So. 3d 791, 792
(Fla. 2d DCA 2023) ("Florida law permits, and perhaps even requires, a
six-person jury in all felony cases for which death is not a possible
penalty." (quoting Gonzalez, 982 So. 2d at 81)).
III. Conclusion
For the foregoing reasons, Wilson is not entitled to relief.
Accordingly, we affirm his judgment and sentence.
Affirmed.
LUCAS, C.J., and SMITH, J., Concur.
Opinion subject to revision prior to official publication.
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