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A trial judge did not abuse his discretion by letting a developmentally disabled alleged victim testify while holding a teddy bear, the Second District Court of Appeal ruled on October 23, 2026, in Wilson v. State, No. 2D2025-0470. The same opinion turned down a request to overturn a six-person jury verdict based on the U.S. Supreme Court’s decision to hear a case on that question.
The case. Brian John Wilson was tried in Pinellas County on charges of attempted sexual battery on a mentally defective person and sexual battery on a mentally defective person. The opinion describes the victim as a developmentally disabled adult whose mental ability is childlike. The jury found Wilson guilty of battery, a lesser offense of the attempt charge, and acquitted him of sexual battery. As a habitual felony offender, he was sentenced to ten years in prison. He raised three issues on appeal. The court wrote about two of them and said none supported reversal.
The teddy bear. The victim took the stand holding a teddy bear about twelve inches by six inches. Wilson objected, and the trial judge allowed it. On appeal Wilson cited no authority. He argued that the witness is an adult and that the jury met a witness who “immediately evinced sympathy to the detriment of a fair trial for Wilson.”
The court started from the rule that how witnesses are examined is within the trial judge’s discretion. It then pointed to section 92.55(5), Florida Statutes. In a proceeding involving a sexual offense, that statute lets a trial court “set any other conditions it finds just and appropriate when taking the testimony of . . . a person who has an intellectual disability.” The court said it could find no Florida case on the precise question. It cited courts in other states that have allowed comfort items: State v. Richter, 27 N.W.3d 777 (S.D. 2025), State v. Powell, 318 S.W.3d 297 (Mo. Ct. App. 2010), and State v. Brick, 163 Wash. App. 1029 (2011). Brick said “[n]o authority requires the court to hold a hearing or to make a finding of necessity” before a victim testifies holding a “security object.” Under the plain language of section 92.55(5), the court held, there was no abuse of discretion.
The six-person jury. Florida law, section 913.10, lets a six-person jury decide noncapital criminal cases. After Wilson’s briefs were filed, he asked to add a supplemental brief arguing that the U.S. Constitution requires twelve jurors. The court granted that request. His reason was Kian v. Florida, 421 So. 3d 439 (Fla. 4th DCA 2025), in which the U.S. Supreme Court granted certiorari, 146 S. Ct. 2732 (2026). The court wrote that “it appears that the United States Supreme Court will reconsider” whether a six-person jury violates the Constitution.
The Second District still ruled against him, for three reasons given in the opinion: – Wilson admitted he never raised the issue at trial or in his first brief. A facial challenge to a statute can be raised for the first time on appeal only if the error is fundamental, and “[u]nder existing law, no fundamental error occurred here.” – The U.S. Supreme Court held in Williams v. Florida, 399 U.S. 78 (1970), that refusing to seat more than the six jurors Florida law provides does not violate the Sixth Amendment. The court cited earlier Florida decisions that followed it, including Gonzalez v. State, 982 So. 2d 77 (Fla. 2d DCA 2008). – The State’s main argument was that existing precedent controls, and the court agreed that it was not free to disregard it.
Reading it (the author’s, not the court’s). The opinion does not say what happens if the Supreme Court rules differently in Kian. It does show that the timing mattered here: Wilson first raised the point in a supplemental brief on appeal, and the court judged it under the fundamental-error standard.
Panel: Judges Silberman (author), Lucas and Smith. The opinion is subject to revision before official publication.
Source: Wilson v. State, No. 2D2025-0470 (Fla. 2d DCA Oct. 23, 2026). This article is general information, not legal advice.