State v. Timothy Harrington

VERMONT SUPREME COURT Case No. 25-AP-120
109 State Street
Montpelier VT 05609-0801
802-828-4774
www.vermontjudiciary.org

Note: In the case title, an asterisk (*) indicates an appellant and a double asterisk (**) indicates a cross-
appellant. Decisions of a three-justice panel are not to be considered as precedent before any tribunal.

ENTRY ORDER

DECEMBER TERM, 2025

State of Vermont v. Timothy Harrington* } APPEALED FROM:
} Superior Court, Bennington Unit,
} Criminal Division
} CASE NO. 24-CR-05068
Trial Judge: Kerry Ann McDonald-Cady

In the above-entitled cause, the Clerk will enter:

Defendant appeals his conviction of second-degree aggravated domestic assault
following a jury trial. On appeal, he argues that the trial court erred in denying his post-trial
motion for judgment of acquittal, denying his motion to dismiss based on vindictive prosecution,
and admitting photographs of complainant’s injuries. We affirm.

The record provides the following facts. In July 2022, defendant was charged with one
count of second-degree aggravated domestic assault for repeatedly striking and choking the
complainant, then his girlfriend, on July 16, 2022. The charging affidavit stated that the
complainant also reported three prior assaults: on April 8, 2022, defendant threw a metal coffee
cup at her, hitting her on the leg and leaving a bruise; on July 1, 2022, defendant backhanded her
on the face; and on July 13, 2022, defendant hit her on the face with a metal coat hanger, leaving
a bruise. The 2022 case did not list charges for these assaults. The case proceeded to trial in
2024. At the close of the State’s case for the July 16, 2022 assault, defendant moved for
judgment of acquittal, asserting that the State failed to produce evidence identifying defendant as
the person who assaulted complainant. The trial court concluded that the evidence was
insufficient for the jury to infer that the person on trial was the same person who committed the
offense and granted the motion to dismiss.

On the same day, the State charged defendant with six counts of second-degree
aggravated domestic assault for the April 8, July 1, and July 13 incidents mentioned in the prior
affidavit, charging separately for each date under 13 V.S.A. § 1044(a)(2)(A) and (a)(2)(B). In
support, the State filed the same affidavit that supported the charges brought in July 2022.
Defendant moved to dismiss based on vindictive prosecution. Defendant argued that the
State filed the new charges because defendant pursued a motion for judgment of acquittal in the
prior case. The court denied the motion, finding that defendant did not meet his burden of
demonstrating actual or presumptive vindictiveness on behalf of the State. The court explained
that it was not vindictive for the State to hold defendant responsible for other acts of domestic
violence.

Prior to trial, defendant moved for a continuance or to exclude photographs that were
recently provided to him by the State. Defendant claimed that the photographs were highly
prejudicial, and that defendant needed more time to investigate the authenticity of the
photographs. The court denied the motions but provided defendant an opportunity to depose
complainant before she testified.

At trial, the State presented evidence from complainant and from a Bennington police
officer. The officer testified that in July 2022, complainant made a report alleging defendant
assaulted her and showed him photographs of the injuries on her phone. Complainant testified
and described each assault. Defendant testified and denied assaulting complainant. He stated
that complainant fell down the stairs on more than one occasion.

The jury found defendant guilty of assaulting complainant on April 8, but it acquitted him
on the charges related to the July 1 and 13 incidents. Defendant filed a post-trial motion for
judgment of acquittal, arguing that the court erred by admitting photographs of complainant’s
injuries and denying his motion to continue, and that the court lacked jurisdiction over the matter
because the State did not establish that the April 8 assault took place in Vermont. The trial court
denied the motion, ruling that the photographs were properly admitted, and there was sufficient
circumstantial evidence that the April 8 offense occurred in Bennington. The court imposed a
sentence of five-to-fifteen years to serve. Defendant appeals.

On appeal, defendant first argues that the trial court erred in denying his motion for
judgment of acquittal because the State provided insufficient evidence that the assault occurred
in Bennington, Vermont, and was therefore within the court’s jurisdiction.1 This Court applies
the same standard as the trial court in assessing a motion for judgment of acquittal and thus
views “the evidence in the light most favorable to the State, excluding any modifying evidence,
and determine[s] whether it is sufficient to fairly and reasonably convince a trier of fact that the
defendant is guilty beyond a reasonable doubt.” State v. Cameron, 2016 VT 134, ¶ 5, 204 Vt. 52
(quotation omitted); see V.R.Cr.P. 29 (providing for judgment of acquittal if “evidence is
insufficient to sustain a conviction of such offense”). Because “[a] jury is in the best position to
weigh facts and deliver a verdict,” an acquittal will be granted “only when there is no evidence to
support a guilty verdict.” Cameron, 2016 VT 134, ¶ 5.

1
The State argues that the issue of whether defendant’s conduct occurred in Bennington
as opposed to a different Vermont county is one of venue, and defendant did not properly
preserve this argument because he failed to challenge venue in the trial court. The State points
out that although complainant testified that defendant sometimes stayed in Troy, it was not clear
whether she was referring to Troy, New York, or Troy, Vermont. Because we conclude that
there was sufficient evidence for the jury to find that the events took place in Bennington, we do
not reach these issues.

2
Viewing the evidence in the light most favorable to the State, there was sufficient
circumstantial evidence for the jury to find that the events took place in Bennington, Vermont.
Complainant testified that she was dating defendant in April 2022, and defendant lived with her
and her four young children at the same residence in Bennington, Vermont, from 2020 to 2022.
She explained, however, that there were times when defendant stayed with his other girlfriend in
“Troy.” She stated that defendant subjected her to physical and mental abuse. Complainant
described each assault charged. As to the assault on April 8, she testified that defendant was
standing at the top of the stairwell in the doorway of her daughter’s room and threw a metal
coffee cup down the stairs at her, hitting her in the leg. During his testimony, defendant denied
throwing a metal cup at complainant, but admitted that he had a metal cup in their home and
sometimes kept it upstairs with him. Complainant’s testimony that defendant lived with her and
her children combined with her description of where the assault took place, particularly the fact
that defendant was standing by her children’s room and the stairs, provided a sufficient basis for
the jury to reasonably find that the incident took place in the home where the parties were living
in Bennington. See State v. Jones, 2019 VT 3, ¶ 13, 209 Vt. 370 (explaining that “[j]uries may
draw reasonable inferences from circumstantial evidence”).

Defendant next argues that the trial court erred in denying his motion to dismiss for
vindictive prosecution because the State charged him for conduct that was included in a prior
charging affidavit for an acquitted charge. In general, prosecutors have broad discretion in
deciding whether to institute criminal proceedings. Off. of State’s Att’y Windsor Cnty. v. Off. of
Att’y Gen., 138 Vt. 10, 13 (1979). Charges may be dismissed based on vindictive prosecution2
when “there is a finding of actual vindictiveness, or if there is a presumption of vindictiveness
that has not been rebutted by objective evidence justifying the prosecutor’s action.” United
States v. Sanders, 211 F.3d 711, 716 (2d Cir. 2000) (quotations omitted). To show a vindictive
motive, a defendant must prove “that the prosecutor’s charging decision was a direct and
unjustifiable penalty that resulted solely from the defendant’s exercise of a protected legal right.”
Id. at 716-17 (quotations and citation omitted). An actual vindictive motion is shown through
evidence that “(1) the prosecutor harbored genuine animus toward the defendant, or was
prevailed upon to bring the charges by another with animus . . . and (2) the defendant would not
have been prosecuted except for the animus.” Id. at 717 (quotation and alternation omitted).
The trial court’s findings on prosecutorial vindictiveness are reviewed for clear error and the
legal conclusion de novo. United States v. Stewart, 590 F.3d 93, 122 (2d Cir. 2009).

Defendant did not meet his burden of showing a vindictive motive here. The sole basis
for vindictive prosecution that defendant identifies is that the State decided to charge defendant
for behavior previously included in an indictment for a different charge that was ultimately
dismissed by the court because the State failed to prove identity. There is no evidence to show
that the State was seeking anything more than to hold defendant responsible for his assaultive
acts against complainant. Defendant provided no evidence that the prosecutor had animus
toward defendant or was prevailed upon to bring charges based on animus. The fact that the
State chose initially not to bring charges for that conduct does not in itself provide a vindictive
motive. See id. at 122-23 (rejecting defendant’s vindictive-prosecution claim where, after

2
Both defendant and the State employ a test used by the Court of Appeals for the Second
Circuit. Because the parties do not dispute the elements of this test, we do not reach the question
of whether this is the appropriate standard.

3
defendant successfully moved to dismiss indictment, government subsequently charged for
different conduct contained in prior indictment).

Finally, defendant argues that the trial court erred in admitting photographs that were
provided to defense counsel a few days before trial and in denying defendant’s request for a
continuance.3 Complainant testified that after the April 8 incident, she took photographs of the
injuries on her leg. She explained that she took the photographs with the phone she had at the
time, and because that phone no longer had service, she had to take photos of the images on the
old phone with her new phone to provide them to the State. She testified that she did not show
them to anyone at the time because she was afraid of defendant. A Bennington police officer
also testified that complainant showed the photos she took in July 2022. On January 10, 2025, in
preparation for trial, complainant for the first time provided the photographs to the State’s
attorney, who promptly sent them to defense counsel. Prior to trial, defendant moved to exclude
the photographs or for a continuance, arguing that the late disclosure was prejudicial. The court
denied defendant’s motion, concluding that defendant could have discovered the existence of the
photographs if defendant had deposed complainant or the police officer. The court did delay
proceedings to provide defendant with an opportunity to depose complainant.

After trial, defendant moved for a new trial, renewing his arguments about the
photographs. Defendant asserted that there was insufficient time to investigate how the
photographs were taken, downloaded, and transferred. The court denied the motion, finding that
defendant was provided an opportunity to depose complainant prior to trial and that the existence
of the photos could have been ascertained through the discovery process. Moreover, the State
disclosed the photographs to defense counsel as soon as they were provided by complainant, and
defendant did not provide an explanation of what would have been done to further examine the
photographs in advance of trial.

On appeal, this Court reviews the trial court’s decisions regarding admission of evidence
and whether to grant a continuance for an abuse of discretion. See State v. Streich, 163 Vt. 331,
350 (1995) (“The granting of a continuance by the trial court is a matter of discretion.”); State v.
Sarkisian-Kennedy, 2020 VT 6, ¶ 22, 211 Vt. 390 (providing that decision to admit evidence is
reviewed for abuse of discretion). The court here acted well within its discretion. The court
found that the State had provided defendant with the photographs promptly once they were

3
To the extent defendant argues on appeal that the photographs were not properly
authenticated, he did not object to admission of the photographs on that basis below, and
therefore the issue is not preserved for appeal. State v. Gomes, 162 Vt. 319, 330 (1994)
(explaining that defendant must object to admission of evidence at trial to preserve issue for
appeal).

Defendant also contends that the photographs impacted the impartiality of the jurors.
During voir dire the State’s attorney asked one juror whether the juror could convict without
corroboration, and the juror indicated she would have difficulty convicting on testimony alone.
Other jurors heard this exchange. Defendant argues that the fact that the State subsequently
produced corroborating evidence might have improperly influenced jurors. There is no merit to
this argument. Defendant did not challenge any of the jurors for cause on this basis and did not
provide any support for his general allegation that the jury was not fair and impartial.

4
disclosed by complainant and permitted defendant time to depose complainant. Moreover,
defendant failed to demonstrate what more he would have done to investigate the photographs if
provided with more time.

Affirmed.

BY THE COURT:

Paul L. Reiber, Chief Justice

William D. Cohen, Associate Justice

Nancy J. Waples, Associate Justice

5