FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D2022-3231

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THURSTON MCBRIDE,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

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On appeal from the Circuit Court for Leon County.

Joshua M. Hawkes, Judge.

August 21, 2024

ROWE, J.

Thurston “Michael” McBride appeals his judgment and 

sentence for capital sexual battery.* He argues that the trial court 

* The State filed a notice of cross-appeal, raising two claims of 

error, but failed to brief the issues. Thus, the claims are 

abandoned. See Rosier v. State, 276 So. 3d 403, 406 (Fla. 1st DCA 

2019) (“[I]ssues not raised in the initial brief are considered waived 

or abandoned.”); Polyglycoat Corp. v. Hirsch Distribs., Inc., 442 So. 

2d 958, 960 (Fla. 4th DCA 1983) (“When points, positions, facts and 

supporting authorities are omitted from the brief, a court is 

entitled to believe that such are waived, abandoned, or deemed by 

counsel to be unworthy.”).
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reversibly erred in denying his motion for new trial, asserting that 

the court applied the wrong standard when considering the motion 

and that the court abused its discretion when it found that the 

verdict was supported by the weight of the evidence. Finding no 

error by the trial court, we affirm. 

Facts

McBride was charged in 2012 with one count capital sexual 

battery after the victim, PL, told his mother that McBride raped 

him when he was five years old. At the time PL alleges the rape 

happened, McBride was married to PL’s godmother. PL lived with 

his godmother from infancy until age nine, while his mother 

battled drug addiction. When he was in kindergarten, PL’s teacher 

showed his mother a picture PL had drawn depicting a man’s penis 

pointed at the bottom of another’s rectum. 

Later, when he was eleven, PL’s principal called his mother to 

report that PL wrote a suicide note during class. PL wrote that he 

wanted to kill himself and planned to do so that night. The 

principal alerted child protective services and the child protection 

team (CPT). A CPT investigator spoke with PL and, after ensuring 

he was not a risk to himself, gave PL’s mother a card with her 

phone number, instructing her to reach out to the team if needed.

A few days later, PL told his mother that he again felt that he 

wanted to kill himself. His mother asked PL what caused these 

feelings. PL cried and seemed reluctant to tell her. Once his 

mother assured him that he was safe and could tell her anything,

PL revealed that McBride raped him when he was five. His mother 

called the same CPT investigator she met with at the school days 

before. The investigator asked her to bring PL in for a recorded 

interview. During the interview, PL told the investigator that one 

night when he was five years old, McBride became angry with him 

for falling asleep in the bathtub. McBride yelled at PL, spanked 

him, and told him to go to his room. PL stated that McBride later 

entered the room, shut the door, and raped him. PL asserted that 

everyone was home and heard him scream during the attack. PL 

asserted that his godsister broke into the room and confronted 

McBride. PL told investigators that this was the only time McBride 
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ever sexually abused him. Soon after the rape, McBride left the 

home and PL never saw him again. 

The case went to trial. The State presented testimony from 

PL, his mother, his teacher, his principal, and the CPT 

interviewer. The State also introduced a recording of the CPT’s 

forensic interview with PL. The defense presented testimony from 

PL’s godmother, his godsister, and McBride.

PL, then thirteen, testified about the rape and the emotional 

trauma he suffered. PL testified that because of the trauma, he 

skipped school for weeks while he was in kindergarten. PL also 

testified that before the rape, McBride often physically abused 

him. PL stated that he sustained injuries from the physical abuse 

that required hospitalization.

PL’s mother testified that she did not know McBride when she 

first put PL in his godmother’s care. She asserted that she knew 

something was going on with PL while he was still living with his 

godmother but did not know about any abuse or the rape. The first 

time she learned of the rape was after PL’s suicide note when he 

was eleven years old. 

PL’s godmother and godsister denied knowing about physical 

or sexual abuse. PL’s godsister denied ever breaking into the room 

or that she confronted McBride. She asserted that she would have 

removed PL from the house and called law enforcement if she 

discovered any abuse. And that she felt PL would have told her 

about the rape or any other abuse. 

The jury found McBride guilty of capital sexual battery and 

the trial court sentenced him to life in prison. On direct appeal, 

this court affirmed McBride’s judgment and sentence. McBride v. 

State, 123 So. 3d 564 (Fla. 1st DCA 2013) (unpublished table 

decision). McBride then moved for postconviction relief under 

Florida Rule of Criminal Procedure 3.850. McBride alleged that his 

trial counsel was ineffective for failing to investigate and introduce 

PL’s school attendance records. McBride asserted that the records 

would have impeached PL’s testimony that he missed weeks of 

school during his kindergarten year, calling his credibility into 

question. The trial court denied the postconviction motion. On 
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appeal, this court reversed and remanded for a new trial. McBride 

v. State, 252 So. 3d 389, 392–93 (Fla. 1st DCA 2018).

At the second trial, the trial court allowed the defense to 

introduce PL’s school attendance records into evidence. The 

records showed that, at most, PL missed one to three days of school 

during each school quarter between kindergarten through second 

grade. 

The State presented testimony from PL, his mother, his 

teacher, his principal, and the CPT interviewer. The defense 

presented testimony from PL’s godmother and godsister. McBride 

did not testify at his second trial. The trial court excluded PL’s CPT 

interview from the second trial, finding that the methods used in 

the interview were not reliable. And that because PL was now an 

adult and planned to testify, the recording was not necessary. 

PL’s mother testified that she first learned of the rape when 

PL was in kindergarten, and then again when he was eleven. After 

being shown her testimony from the first trial, she asserted that 

she chose to report the rape the second time because PL was then

in her custody, and she could do something to help him. 

PL, then twenty-three years old, testified again about the 

rape. PL testified that McBride anally penetrated him with his 

penis. PL testified that he felt pain and wanted McBride to stop.

Some of PL’s testimony at the second trial was internally 

inconsistent and contradicted statements he made at the first trial, 

twelve years earlier. For example, contrary to his testimony at the 

first trial, PL denied skipping school or going to the hospital. PL 

explained at the second trial that he would ask to go to the 

bathroom during class and then hide in the bathroom for extended 

periods of time, and that he mischaracterized this as skipping 

school in his CPT interview. 

PL recalled getting in trouble in kindergarten for drawing a 

picture of an erect penis but could not explain why he drew it. He 

could not recall whether he was clothed when McBride entered the 

room. He could not recall if he screamed or if his face was in a 

pillow. PL maintained that his godsister broke into the room and 
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confronted McBride. PL denied ever telling his mother about the 

rape before age eleven. 

Defense counsel confronted PL with his past contradictory 

testimony and with his school attendance records. PL asserted 

that he did not recall testifying at the first trial. When offered 

transcript excerpts to refresh his memory, PL refused to read his 

prior statements. PL stated that he could now only remember the 

“big picture” details of the rape. 

PL’s godsister also testified. She denied knowledge of any 

sexual abuse. She was in high school at the time, and often cared 

for PL at home after school. She testified that she never broke into 

the room to confront McBride or to get him away from PL. She

stated that she would have reported any abuse to the police. 

PL’s former teacher and principal also testified. His teacher 

recalled that the day she found the suicide note. PL was withdrawn 

until he disrupted class by throwing balls of wadded paper toward 

her. In one of these paper wads was a note saying that PL intended

to kill himself that night. She immediately took PL to the 

principal, who then called child protective services and his mother.

The principal testified that PL cried during his conversation with 

her, which was unusual behavior for PL.

The jury again found McBride guilty of capital sexual battery. 

The court sentenced McBride to life in prison and designated him 

a sexual predator. 

McBride moved for a new trial, alleging that the jury’s verdict 

was against the greater weight of the evidence and could be 

reached only by disregarding inconsistent testimony. McBride 

argued that all other testimony contradicted PL’s past and present 

statements. PL’s testimony conflicted with his mother’s 

statements about when she learned of the rape. His godsister 

maintained that she never entered the room while McBride raped 

PL. McBride argued that PL’s testimony was also internally

inconsistent. Taken together, these inconsistencies constituted 

impeachment evidence against PL. And because the case hinged 

solely on the credibility of PL, the jury could not have reached a 

guilty verdict without disregarding the evidence. 
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The State argued that PL’s recollection of the rape was 

corroborated by the testimony of his principal and teacher about 

his withdrawn demeanor, class disruptions, and suicide note. And 

that any inconsistencies stemmed from PL testifying eighteen 

years after the rape. These inconsistencies did not mean PL was

not credible. 

At the hearing on the new trial motion, the court commented 

on its role as the “seventh juror” and raised questions on the 

applicable standard of review: 

[A]ll that to say, I don’t get a good feel for the weight test, 

I mean, other than, I’m an additional juror.

[I]t would seem like sufficiency is a higher burden under 

[the weight test], so sufficiency is enough to show the 

prosecution—well, legally insufficient means the 

prosecution failed to prove the defendant’s guilt beyond a 

reasonable doubt. So sufficient means it can support a 

verdict beyond a reasonable doubt but weight means 

there’s not enough for preponderance, which, to me, kind 

of reverses the burden. I don’t know.

After a dialogue with counsel at the hearing, the court allowed

McBride to submit additional written arguments on the applicable 

standard. Two weeks later, the trial court entered a written order 

denying McBride’s motion for new trial. 

The court found PL’s testimony credible and that the evidence 

was “weighty enough” to support the verdict. That PL’s testimony 

was emotional and coherent with respect to the details of the rape. 

And that PL had no obvious motive or bias to fabricate the 

allegations against McBride. The trial court concluded that PL’s

school attendance records and the conflicting testimony from other 

witnesses did not sufficiently undermine the credibility of PL’s

testimony. This appeal follows.

Analysis
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McBride argues that the trial court reversibly erred in 

denying the motion for new trial. He asserts that the trial court’s 

comments during the motion hearing show that the court failed to 

apply the correct legal standard when considering the new trial 

motion. And, even if the trial court applied the correct standard, 

McBride argues that the court abused its discretion by denying the 

motion because no reasonable person would find PL’s testimony 

credible. 

This court reviews de novo whether the trial court applied the 

correct legal standard ruling on a motion for new trial. Jordan v. 

State, 244 So. 3d 1178, 1179 (Fla. 1st DCA 2018). We review the 

court’s ruling for abuse of discretion. Id. 

We find no error here. Although the trial court raised

questions at the hearing about the applicable standard for ruling 

on a motion for new trial, the court’s written order clearly and 

unambiguously applies the correct legal standard. When 

considering a motion for a new trial, a trial court must act as the 

“seventh juror” to find whether the verdict is contrary to the weight 

of the evidence, and ”whether a greater amount of credibe evidence 

supports an acquittal.” State v. Bohler, 263 So. 3d 291, 293 (Fla. 

1st DCA 2019); Bell v. State, 248 So. 3d 208, 209 (Fla. 1st DCA 

2018); Tibbs v. State, 397 So. 2d 1120, 1123 n.9 (Fla. 1982) (“Rule 

3.600(a)(2) thus enables the trial judge to weigh the evidence and 

determine the credibility of witnesses so as to act, in effect, as an 

additional juror.”). 

The trial court, in considering the new trial motion, cited and 

evaluated the very authorities cited above: Bohler, Bell, and Tibbs. 

The court’s written order reflects it applied the required standard 

precisely. The trial court weighed the evidence as a juror would 

and found that PL was a credible witness. The trial court found 

that PL had no motive to fabricate his testimony about the rape.

The trial court noted—unlike other cases—that there was no 

confusion or mistake in identification. The trial court found that 

PL’s inconsistencies on details surrounding the rape and abuse

(his school attendance, whether he was hospitalized for other 

physical abuse, and so on) did not undermine PL’s coherent and 

emotional trial testimony recounting the sexual battery committed 

by McBride.
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After citing the correct legal standard, the trial court 

concluded that the evidence proffered was “weighty enough” to 

support the guilty verdict. The court’s findings and analysis show

that the trial court correctly assessed whether the verdict was 

against the weight of the evidence. See Jordan, 244 So. 3d at 1179 

(“[A] trial court is not required to use ‘magic words’ when ruling on 

a motion for a new trial[.]”) (citing Palmer v. State, 192 So. 3d 1289 

(Fla. 1st DCA 2016)); . . . . ”); see also Daniels v. State, 313 So. 3d 

247, 253 (Fla. 1st DCA 2021) (“Here, the trial court emphasized 

that it acted as another juror when it considered whether the jury’s 

verdict was contrary to the weight of the evidence. Thus, the court 

used the correct standard . . . . ”).

But McBride maintains that even if the trial court applied the 

correct legal standard, the trial court abused its discretion in 

denying the new trial motion. We disagree.

The decision to grant or deny a motion for a new trial is within 

the trial court’s discretion and is entitled to a presumption of 

correctness. See State v. Spaziano, 692 So. 2d 174, 177 (Fla. 1997); 

Mitchell v. Burgess & Cook, Inc., 238 So. 2d 460, 461 (Fla. 1st DCA 

1970); Moreland v. State, 253 So. 3d 1245, 1247 (Fla. 1st DCA 

2018) (“[R]easonable inferences and deductions must be taken in a 

manner favorable to affirming a trial court’s ruling, not reversing 

it.”). An appellate court will find error in a trial court’s denial of a 

new trial only when no reasonable person would adopt the same 

view as the trial court. Stephens v. State, 787 So. 2d 747, 754 (Fla. 

2001). Or if there is error that is “clear and patent on the record.” 

Allstate Ins. Co. v. Wood, 535 So. 2d 699, 700 (Fla. 1st DCA 1988)

(citing Johnny Roberts, Inc. v. Owens, 168 So. 2d 89 (Fla. 2d DCA 

1964)). We find no such error here.

The trial court found PL’s detailed testimony about the sexual 

battery to be credible and that the weight of the evidence 

supported the jury’s verdict. PL’s former teacher and principal 

corroborated PL’s testimony about being withdrawn and acting out 

in school in the years after the rape. PL drew explicit images of a 

man’s penis and a rectum while still in kindergarten—the same 

year that PL testified McBride raped him. When he was eleven, PL 

experienced suicidal ideation. PL’s godmother and godsister 
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corroborated that McBride was kicked out of the home around the 

time PL alleges he was raped. 

The trial court, sitting as the “seventh juror” determined that 

conflicts in PL’s statements and testimony, and conflicting 

testimony from the defense’s witnesses were not sufficient to

undermine all other evidence presented. This court will not disturb 

that determination. See Looney v. State, 941 So. 2d 1017, 1023––

24 (Fla. 2006) (holding that the trial court’s credibility 

determination will not be disturbed on appeal); M.A.B. v. Dep’t of 

Health & Rehab. Servs., 630 So. 2d 1252, 1254 (Fla. 1st DCA 1994)

(same); Porter v. State, 788 So. 2d 917, 923 (Fla. 2001) (noting that 

a trial court has a “superior vantage point in assessing the 

credibility of witnesses”). 

Because the trial court did not err in denying the motion for 

new trial, we AFFIRM McBride’s judgment and sentence. 

LEWIS and M.K. THOMAS, JJ., concur.

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Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

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Rachael E. Reese of O’Brien Hatfield Reese, P.A., Tampa, for

Appellant.

Ashley Moody, Attorney General, and Virginia Chester Harris, 

Senior Assistant Attorney General, Tallahassee, for Appellee.