State v. Harrington: No Presumption of Vindictive Prosecution from Subsequent Charges and Broad Discretion over Late‑Disclosed Evidence

1. Introduction

This commentary analyzes the Vermont Supreme Court’s entry order in State v. Timothy Harrington, Case No. 25‑AP‑120 (Dec. 5, 2025), affirming a conviction for second-degree aggravated domestic assault arising from an April 8, 2022 incident.

Although the Court issued the decision as a three‑justice entry order (and therefore formally “not to be considered as precedent before any tribunal” under Vermont practice), the reasoning nevertheless provides useful guidance on three recurring issues in criminal litigation:

What constitutes sufficient circumstantial evidence
When subsequent charges filed after a successful defense motion in an earlier case amount to vindictive prosecution.
How trial courts should handle late-disclosed photographic evidence and requests for continuances based on such disclosure.

The defendant, Timothy Harrington, was originally prosecuted for a July 16, 2022 domestic assault on his then‑girlfriend. That case was dismissed at trial on his motion for judgment of acquittal due to failure of proof on identity. On the same day, the State filed six new counts of second-degree aggravated domestic assault based on three earlier incidents—April 8, July 1, and July 13, 2022—described in the original affidavit but never previously charged.

At the second trial, the jury convicted Harrington only on the April 8 incident (the thrown metal coffee cup) and acquitted him of the July 1 and July 13 counts. On appeal, Harrington challenged:

The sufficiency of evidence that the April 8 assault occurred in Bennington, Vermont.
The denial of his motion to dismiss for vindictive prosecution.
The admission of photographs of the complainant’s injuries that were disclosed just days before trial and the denial of his motion for a continuance.

The Supreme Court affirmed on all points. While the Court did not purport to create new doctrine, its application of established principles, particularly on vindictive prosecution and late-disclosed evidence, functions in practice as a clarifying guide for litigants in Vermont criminal cases.

2. Summary of the Opinion

2.1 Case Background and Procedural History

The complainant reported that Harrington, her then‑boyfriend, subjected her to repeated assaults, including:

April 8, 2022: Harrington allegedly threw a metal coffee cup down a stairwell, striking her leg and leaving a bruise.
July 1, 2022: He allegedly backhanded her in the face.
July 13, 2022: He allegedly hit her in the face with a metal coat hanger, leaving a bruise.
July 16, 2022: The original charged incident—alleged repeated striking and choking.

The July 16 incident was charged first, in July 2022. The affidavit mentioned the April 8, July 1, and July 13 assaults but no charges were brought for them. At the trial on the July 16 count, the court granted Harrington’s Rule 29 motion for judgment of acquittal, finding the State had failed to present sufficient evidence that Harrington was the person who committed that offense.

Immediately after this dismissal, the State charged six counts of second-degree aggravated domestic assault under 13 V.S.A. § 1044(a)(2)(A) and (a)(2)(B) based on the three earlier dates (two counts per date). The State reused the same affidavit originally filed in 2022.

Harrington moved to dismiss the new case for vindictive prosecution, contending that the State filed the new charges to punish him for exercising his right to seek a judgment of acquittal in the first case. The trial court denied the motion.

Shortly before the second trial, the complainant provided photographs of her April 8 leg injury to the State. The State turned them over to defense counsel promptly. Harrington moved to exclude the photos or obtain a continuance, arguing prejudice and inadequate time to assess authenticity. The court denied exclusion but allowed him to depose the complainant before she testified.

After a jury trial, Harrington was:

Convicted of the April 8 assault, and
Acquitted on the July 1 and July 13 counts.

He then filed a post‑trial motion for judgment of acquittal (and effectively a new trial motion), arguing:

Lack of proof that the April 8 incident occurred in Vermont (jurisdiction/venue).
Error in admitting the photographs and denying his continuance request.

The trial court denied the motion and imposed a five‑to‑fifteen‑year sentence to serve. He appealed.

2.2 Holdings in Brief

Sufficiency of evidence of location (Bennington, Vermont): The Court held that the complainant’s testimony that Harrington lived with her and her children at a residence in Bennington from 2020 to 2022, combined with her description of the location of the April 8 assault inside that home (by the stairwell and daughter’s room), provided sufficient circumstantial evidence for the jury to conclude the offense occurred in Bennington.
Vindictive prosecution: Applying the Second Circuit’s test from United States v. Sanders, the Court held that Harrington failed to show either actual or presumed vindictiveness. The mere fact that the State brought new charges based on conduct described in a prior affidavit after losing the first case did not demonstrate vindictive motive and did not give rise to a presumption of vindictiveness.
Late‑disclosed photographs and denial of continuance: The Court found no abuse of discretion in the trial court’s:
- admitting the photographs, which the State disclosed promptly after receiving them; and
- denying a continuance, particularly because the defense was given an opportunity to depose the complainant and failed to specify what additional investigation would have been conducted with more time.
Unpreserved issues: Any challenge to the authentication of the photographs or the impartiality of jurors was unpreserved and/or unsupported in the record.

3. Detailed Analysis of the Court’s Reasoning

3.1 Sufficiency of Evidence that the April 8 Assault Occurred in Bennington, Vermont

3.1.1 Standard of Review and Governing Principles

The Court applied the standard for Rule 29 motions for judgment of acquittal articulated in State v. Cameron, 2016 VT 134, 204 Vt. 52:

view the evidence in the light most favorable to the State, excluding any modifying evidence, and determine whether it is sufficient to fairly and reasonably convince a trier of fact that the defendant is guilty beyond a reasonable doubt. . . . [A]n acquittal will be granted only when there is no evidence to support a guilty verdict. (paraphrased)

Two points are important:

The reviewing court does not reweigh evidence; it credits the State’s evidence and ignores conflicting defense evidence.
“No evidence” is a very demanding standard; even modest evidence that supports the verdict will defeat a Rule 29 motion.

The Court also invoked State v. Jones, 2019 VT 3, 209 Vt. 370 to emphasize that juries may rely on circumstantial evidence and draw reasonable inferences from it, including inferences about where an offense took place.

The State on appeal tried to frame the issue as one of venue (whether the trial was in the proper county), which normally must be raised and preserved in the trial court. The defense framed it as a question of jurisdiction (whether the criminal conduct occurred in Vermont at all). The Court sidestepped this conceptual dispute, holding that, in any event, there was sufficient evidence for the jury to find that the incident occurred in Bennington, so it did not need to reach distinctions between venue and jurisdiction or questions of preservation.

3.1.2 Evidence Supporting the Jury’s Finding

The record, viewed in the State’s favor, showed:

The complainant and Harrington were dating in April 2022.
Harrington lived with her and her four young children at a residence in Bennington, Vermont, from 2020 to 2022.
Sometimes Harrington stayed with another girlfriend in “Troy,” but there was no indication this is where the April 8 incident occurred.
As to April 8, the complainant testified that Harrington was at the top of the stairwell in the doorway of her daughter’s bedroom, threw a metal coffee cup down the stairs, and the cup struck her leg.
Harrington testified he did have a metal cup in the home and sometimes kept it upstairs, implicitly corroborating that the described household scene matched their shared residence.

The Court held that the combination of:

evidence that the parties lived together with her children in Bennington, and
the specific layout details (stairs, daughter’s room) in the description of the assault,

allowed the jury to reasonably infer that the assault occurred in that Bennington home. Under Jones, circumstantial evidence is enough; the State did not need a witness to explicitly testify “the April 8 incident occurred in Bennington, Vermont.”

3.1.3 Significance

The ruling reinforces several practical points:

Location can be proven circumstantially: Prosecutors may rely on testimony about where the parties lived and the configuration of the residence to establish that an offense occurred in a particular county or in Vermont, without an explicit geographic statement attached to the specific incident.
Domestic cases rarely have geographic precision: In intimate-partner violence cases, victims often describe events in terms of rooms, furniture, or family context rather than municipal boundaries. Courts recognize this reality and permit juries to draw reasonable inferences about location.
Defendants must challenge venue/location early: Although the Court did not resolve the venue/jurisdiction distinction here, the State’s preservation argument hints at a risk for defendants: if location is treated as venue, failure to object in the trial court can forfeit the issue.

3.2 Vindictive Prosecution: New Charges After a Successful Defense Motion

3.2.1 The Doctrine and the Precedents Cited

The defense argued that filing new charges for previously uncharged assaults—on the same day the first prosecution collapsed on a Rule 29 motion—constituted vindictive prosecution, in violation of due process.

The Court began with the general principle of prosecutorial discretion from Office of State’s Attorney, Windsor County v. Office of Attorney General, 138 Vt. 10 (1979):

In general, prosecutors have broad discretion in deciding whether to institute criminal proceedings.

It then adopted (at least for purposes of this case) the framework used by the U.S. Court of Appeals for the Second Circuit, citing:

United States v. Sanders, 211 F.3d 711, 716–17 (2d Cir. 2000), which defines vindictive prosecution and distinguishes:
- Actual vindictiveness – proven by evidence of a prosecutor’s genuine animus that caused the charging decision; and
- Presumed vindictiveness – inferred from objective circumstances suggesting a retaliatory motive, which the prosecution must rebut with objective justification.
United States v. Stewart, 590 F.3d 93, 122 (2d Cir. 2009), which confirms:
- factual findings on vindictiveness are reviewed for clear error, and
- the legal conclusion (whether those facts amount to vindictive prosecution) is reviewed de novo.

Under Sanders, a defendant must show that the prosecutor’s decision was a “direct and unjustifiable penalty” imposed solely because the defendant exercised a protected legal right. An “actual vindictive motive” requires evidence that:

The prosecutor harbored genuine animus (or was pressured by someone who did), and
The defendant would not have been prosecuted but for that animus.

The Court noted in a footnote that it did not resolve whether Sanders is the right standard for Vermont, but because both parties agreed to use it, the Court applied it.

3.2.2 The Court’s Application in Harrington

The defendant’s argument was essentially temporal and inferential: the State filed new charges only after he successfully moved for judgment of acquittal in the first case, and those charges were based on conduct that had been known and described in the prior affidavit all along. From this sequence, he asked the Court to infer vindictiveness.

The Court rejected the claim for both actual and presumed vindictiveness:

No actual vindictiveness: The defendant produced no evidence that the prosecutor personally disliked him (animus) or that any such animus motivated the new charges. The record showed only that the State, after losing on the July 16 charge because of an identity proof failure, elected to pursue other alleged assaults described in the original affidavit.
No presumption of vindictiveness: The Court held that the sequence alone—new charges after a successful defense motion—does not automatically create a presumption. It cited Stewart, where the federal government re‑charged a defendant for different conduct contained in a prior indictment after an earlier indictment was dismissed, and the Second Circuit rejected a claim of vindictive prosecution.

The Court emphasized that:

There is no evidence to show that the State was seeking anything more than to hold defendant responsible for his assaultive acts against complainant.

The earlier decision not to charge the April 8, July 1, and July 13 incidents did not prove a retaliatory motive when the State later elected to charge them. Prosecutors often adjust charging decisions based on evolving assessments of evidence, resources, and priorities; this flexibility is part of their recognized discretion.

3.2.3 What Harrington Clarifies in Practice

As a practical matter, Harrington signals that—at least under the Sanders framework—a defendant in Vermont faces a high bar to establish vindictive prosecution when:

the State files new charges for different conduct after a successful defense motion in an earlier related case;
the conduct was already known and mentioned in earlier charging documents; and
there is no direct evidence of personal animus or retaliation by the prosecutor.

Key implications include:

No automatic presumption from timing alone: The fact that more serious or additional charges follow a successful motion (such as a Rule 29 acquittal) does not by itself trigger a presumption of vindictiveness.
Need for concrete evidence of animus: Defendants must develop a record showing statements, conduct, or patterns that indicate retaliatory motive. Mere inferences from charging sequence will rarely suffice.
Multiple episodes with a single victim: Where domestic abuse is alleged over multiple dates, prosecutors may selectively charge incidents and later revise their strategy without automatically risking a viable vindictive-prosecution claim.

While the order is technically non‑precedential, it aligns Vermont practice with federal law in the Second Circuit and provides persuasive guidance for trial courts confronted with similar arguments.

3.3 Admission of Late-Disclosed Photographs and Denial of Continuance

3.3.1 Factual Context

The photographs at issue documented the complainant’s leg injury from the April 8 incident. Key facts:

The complainant originally took the pictures with an older phone (which later lost service). To provide them to the State shortly before trial, she used a new phone to take pictures of the images displayed on the old phone.
She had not provided these photographs to law enforcement earlier, testifying that she was afraid of Harrington at the time.
A Bennington police officer testified that in July 2022 the complainant had shown him photographs of her injuries on her phone, consistent with her account.
On January 10, 2025, shortly before trial, the complainant for the first time gave the photos to the State’s attorney, who promptly turned them over to defense counsel.

The defense moved to exclude the photos or continue the trial, arguing:

the late disclosure was unfairly prejudicial, and
more time was needed to investigate authenticity and the chain of how the images were taken and transferred.

The trial court:

denied the request to exclude the photos,
denied a full continuance, but
delayed proceedings long enough to allow the defense to depose the complainant before she testified.

After conviction, the defense renewed its attack in a post‑trial motion, but again did not specify what concrete steps it would have taken with additional time.

3.3.2 Standards of Review and Precedent

The Supreme Court reviewed:

The decision to grant or deny a continuance for abuse of discretion, citing State v. Streich, 163 Vt. 331, 350 (1995).
The decision to admit evidence (here, the photographs) also for abuse of discretion, citing State v. Sarkisian‑Kennedy, 2020 VT 6, ¶ 22, 211 Vt. 390.

Also significant is State v. Gomes, 162 Vt. 319, 330 (1994), which the Court cited for the principle that evidentiary objections (e.g., authentication) must be raised at trial to be preserved for appeal. Harrington did not object at trial to the authentication of the photos, so that issue was deemed unpreserved.

3.3.3 The Court’s Analysis

The Supreme Court emphasized several points in approving the trial court’s rulings:

Prompt disclosure by the State: The State turned over the photographs as soon as it received them from the complainant. There was no intentional suppression or delay attributable to the prosecution.
Opportunity to mitigate any prejudice: The trial court allowed the defense to depose the complainant before she testified, giving counsel a direct opportunity to probe the origin, timing, and transfer of the photographs.
Defense could have discovered the photos earlier: The court noted that if the defense had chosen to depose either the complainant or the police officer in advance of trial, it could have uncovered the existence of the photographs earlier through ordinary discovery diligence.
Failure to articulate specific prejudice or missing investigation: The defense never explained in its post‑trial motion exactly what additional steps it would have taken, or what exculpatory information it expected to obtain, given more time. Without a concrete showing of how the late disclosure undermined a specific defense strategy, the abstract claim of prejudice was insufficient.

The Court therefore held that the trial court acted “well within its discretion” in both admitting the photos and declining to continue the trial.

3.3.4 Juror Impartiality and Unpreserved Arguments

The defendant also argued that the photographs undermined juror impartiality because, during voir dire, one juror had expressed discomfort with convicting solely on testimony without corroboration. He suggested that the later introduction of corroborative photographs might have caused jurors to give undue weight to that juror’s concern.

The Court rejected this argument for several reasons:

There was no motion to strike that juror (or other jurors) for cause based on the voir dire exchange.
The defendant offered no actual evidence that jurors were unable to remain fair and impartial.
The logic of the argument was speculative: the mere fact that corroborating evidence was ultimately introduced, after a juror’s comment about corroboration, does not establish bias.

In short, both the authentication and juror-impairment challenges were either unpreserved or unsupported, and they provided no basis for reversal.

3.3.5 Practical Takeaways

Defense counsel must make concrete records of prejudice: When late evidence is disclosed, counsel should document:
- what specific investigations they would undertake with more time,
- how those investigations could affect trial strategy, and
- why the late disclosure leaves them unable to prepare adequately.
Deposing key witnesses early can be critical: The Court’s repeated reference to the possibility of earlier depositions signals an expectation that both sides use available discovery tools proactively, especially in serious felony cases.
Timely and precise objections preserve appellate issues: Challenges to authentication, chain of custody, or other evidentiary foundations must be raised when the evidence is offered, not for the first time on appeal.

4. Complex Concepts and Terminology Explained

4.1 Judgment of Acquittal (V.R.Cr.P. 29)

A judgment of acquittal is a procedural mechanism that allows a judge to take a case away from the jury if, even assuming all of the State’s evidence to be true and viewing it in the light most favorable to the State, no reasonable jury could find the defendant guilty beyond a reasonable doubt.

It is usually made at the close of the State’s case and/or at the close of all the evidence.
If granted, the defendant is acquitted on that charge as a matter of law and cannot be retried for the same offense because of double jeopardy protections.

In Harrington’s first trial, the court granted a judgment of acquittal because the State failed to prove that the defendant on trial was the person who committed the July 16 assault (an identity failure).

4.2 Circumstantial Evidence and Reasonable Inferences

Circumstantial evidence is evidence that does not directly prove a fact but allows a jury to infer that fact from related circumstances. For example:

Direct evidence: a witness testifying, “The assault happened in Bennington, Vermont.”
Circumstantial evidence: testimony that the parties lived together in Bennington, and the assault happened in their shared home by the stairs and a child’s bedroom.

Vermont law, consistent with general criminal law principles, allows convictions based entirely on circumstantial evidence if the jury can draw reasonable inferences from it. The Court relied on this in concluding that the April 8 assault occurred in Bennington.

4.3 Venue vs. Jurisdiction (as Implicated in the Opinion)

Although not definitively resolved in the opinion, two related concepts underlie the first appellate issue:

Subject-matter jurisdiction: The court’s power to hear a certain type of case (e.g., criminal felonies) and, in criminal cases, that the conduct occurred within the sovereign territory (here, the State of Vermont).
Venue: The particular county or district within that jurisdiction where the trial may or must be held (e.g., Bennington County versus another Vermont county).

The State argued that the defendant’s complaint about the incident being in “Bennington” instead of some other place was essentially a venue issue, which must be raised and preserved in the trial court. The Court avoided deciding this because, under either rubric, there was enough evidence to support the jury’s conclusion that the offense was in Bennington.

4.4 Vindictive Prosecution

Vindictive prosecution is a due process doctrine that prohibits the government from punishing a person for exercising a protected legal right (e.g., appealing a conviction, filing a motion, or going to trial) by increasing charges or otherwise worsening the defendant’s position out of retaliation.

Two forms:

Actual vindictiveness: The defendant proves the prosecutor’s decision was motivated by personal hostility or retaliatory intent. Evidence might include statements (“If you appeal, I’ll add more charges”), patterns, or unusual deviations from normal practice.
Presumed vindictiveness: In rare situations where timing and circumstances strongly suggest retaliation (e.g., increasing charges after a successful appeal), courts may presume vindictiveness, shifting the burden to the prosecutor to show legitimate reasons for the new charges.

In Harrington, the Court found neither actual nor presumed vindictiveness.

4.5 Abuse of Discretion

Many trial court decisions—such as whether to continue a case or admit particular evidence—are reviewed on appeal for abuse of discretion. Under this deferential standard:

Appellate courts do not substitute their own judgment for that of the trial judge.
A decision will be reversed only if it was made on clearly untenable grounds or to an extent clearly unreasonable under the circumstances.

In this case, both the decisions to:

deny a continuance, and
admit the late‑disclosed photographs,

were upheld under this standard.

4.6 Preservation of Error and Authentication of Evidence

Preservation of error requires that parties timely object at trial to errors they seek to raise on appeal, specifying the legal grounds. If a defendant believes photographs are not properly authenticated (i.e., that there is insufficient proof that the photos are what they purport to be), counsel must object on that basis when the State offers them.

Because Harrington did not object on authentication grounds in the trial court, the Supreme Court treated that issue as unpreserved, meaning it was not properly before the Court on appeal.

5. Broader Impact and Practical Significance

Even as a non‑precedential entry order, State v. Harrington has practical influence in several areas of Vermont criminal law and practice.

5.1 Evidentiary Sufficiency in Domestic Violence Prosecutions

The decision confirms that domestic violence cases can be proved with circumstantial evidence about living arrangements and interior home geography to establish the situs of the offense.
In homes where the same couple may sometimes reside in more than one location (e.g., in another town or across state lines), prosecutors should still develop as much detail as possible about the specific setting of each incident. But Harrington confirms that juries may infer location from context.

5.2 Managing Sequential Prosecutions Arising from the Same Relationship

Harrington underscores that:

The State’s decision not to charge particular incidents initially does not foreclose later charging those incidents, even if related charges have failed.
The passage from initial charging to dismissal and then to recharging does not, by itself establish a vindictive prosecution claim. Defendants must show something more than prosecutorial re‑assessment.

For prosecutors, it is nonetheless wise to:

document non‑retaliatory reasons for charging decisions (e.g., new evidence, victim cooperation), and
avoid statements that could be construed as threatening additional charges if a defendant exercises legal rights.

5.3 Discovery Practices and Late Evidence in Domestic Cases

Domestic violence cases commonly involve late disclosures by fearful or ambivalent victims. Harrington illustrates:

Courts will usually tolerate late but promptly disclosed evidence—especially when the State is not at fault for the delay—if any prejudice can be mitigated through focused remedies (e.g., a deposition).
Defense counsel must marshal specific, not speculative, reasons why late evidence impairs their ability to prepare, and propose concrete remedial steps (e.g., expert review of digital images, witness interviews, forensic analysis).

5.4 Alignment with Federal Vindictive-Prosecution Doctrine

By borrowing the Sanders and Stewart framework, the Court effectively harmonizes Vermont practice with Second Circuit federal precedent, at least where the parties stipulate to those standards. This provides:

predictability for practitioners who litigate in both state and federal courts, and
a strong indication that Vermont courts will be skeptical of vindictive prosecution claims based solely on the fact of increased or additional charges after a defendant exercises procedural rights, absent compelling contextual evidence.

6. Conclusion

State v. Harrington affirms a conviction for second-degree aggravated domestic assault and, in doing so, offers structured guidance on three recurring aspects of criminal practice:

Location of the offense: Jurors may rely on circumstantial evidence and the domestic context to determine where an offense occurred, and appellate courts will not disturb these findings absent a complete absence of supporting evidence.
Vindictive prosecution: Subsequent charges for different, previously uncharged conduct described in an earlier affidavit do not, without more, create either a presumption or proof of prosecutorial vindictiveness, even when they follow a successful motion for judgment of acquittal.
Late-disclosed evidence and continuances: Trial courts retain broad discretion to admit late-disclosed evidence and to manage trial schedules. Prompt disclosure by the State and targeted remedial opportunities for the defense (such as depositions) will usually suffice to defeat claims of prejudice, especially where the defense cannot specify what more it would have done with additional time.

Although the decision is formally non‑precedential, its careful application of established doctrines on sufficiency, prosecutorial discretion, and evidentiary management will likely influence how Vermont trial courts and practitioners frame and resolve similar issues in future domestic assault and other criminal cases.