dissenting: I respectfully disagree with the majority’s presumption of prosecutorial vindictiveness and its disregard of evidence sufficient to rebut the presumption. Accordingly, I write separately to explain what I believe to be the proper analysis. For the reasons that follow, I would hold that the defendant failed to invoke a presumption of prosecutorial vindictiveness, and that even if he made the requisite showing to trigger the presumption, the State effectively rebutted it. I would affirm the defendant’s convictions.
The majority concludes that a presumption of vindictiveness arises because the prosecutor brought 104 additional indictments after the defendant successfully appealed his convictions, and thereby increased the defendant’s potential punishment on retrial. To reach this conclusion, the majority relies on State v. Goding, 128 N.H. 267, 513 A.2d 325 (1986), a case in which a defendant was convicted of an offense, elected a trial de novo in superior court, and was charged with a more serious offense based on the same conduct originally prosecuted. In Goding, this court followed Blackledge v. Perry, 417 U.S. 21 (1974), and Thigpen v. Roberts, 468 U.S. 27 (1984), decisions squarely on point with Goding. Thigpen and Blackledge establish a rebuttable presumption of vindictiveness when a prosecutor “ups the ante” in response to a defendant’s election to pursue a trial de novo. Goding, 128 N.H. at 272, 513 A.2d at 329. The majority applies the presumption of prosecutorial vindictiveness here, ignoring that the United States Supreme Court has not expanded the presumption beyond the limited factual context of Thigpen and Blackledge.
The doctrine of prosecutorial vindictiveness finds its origins in cases addressing claims of judicial vindictiveness. In North Carolina v. Pearce, 395 U.S. 711 (1969), the Court held that judicial vindictiveness is presumed where a defendant receives a harsher sentence from the same court on retrial following an appeal unless the trial judge articulates the basis for the increase, and the stated *619reasons are logically related to conduct that occurred after the original sentencing. In Colten v. Commonwealth of Kentucky, 407 U.S. 104 (1972), no presumption arose because, among other reasons, the court that tried the case on remand was not the court that had been reversed by the appellate court. Somewhat similarly, in Chaffin v. Stynchcombe, 412 U.S. 17 (1973), no presumption arose because the defendant’s sentence after retrial was imposed by a jury that was unaware of the original sentence. Therefore, when it is clear that the increased punishment is not due to the judge’s desire to retaliate against the defendant for vindicating his rights on appeal, no presumption arises.
In Blackledge, the Court was faced with prosecutorial conduct sufficiently analogous to that of the trial judge in Pearce to warrant a presumption of vindictiveness. Before the Court adopted the presumption in circumstances where a prosecutor substituted a more serious charge prior to a trial de novo, however, it noted that “[t]he lesson that emerges from Pearce, Colten, and Chaffin is that the Due Process Clause is not offended by all possibilities of increased punishment upon retrial after appeal, but only by those that pose a realistic likelihood of ‘vindictiveness.’” Blackledge, 417 U.S. at 27. Thus, the standard for invoking the presumption of prosecutorial vindictiveness was born.
Since Blackledge, however, the Court has not extended the presumption of prosecutorial vindictiveness beyond those cases in which a prosecutor substitutes a more serious charge after a defendant elects a trial de novo. See generally United States v. Goodwin, 457 U.S. 368 (1982) (prosecutor may seek felony indictment after defendant halts plea negotiations and requests jury trial on pending misdemeanor charges); Bordenkircher v. Hayes, 434 U.S. 357 (1978) (prosecutor may threaten to bring additional charges with greater potential punishment unless defendant agrees to plea bargain). The reason for the Court’s reticence was explained in Goodwin: “Given the severity of such a presumption, however — which may operate in the absence of any proof of an improper motive and thus may block a legitimate response to criminal conduct — the Court has [applied it] only in cases in which a reasonable likelihood of vindictiveness exists.” Goodwin, 457 U.S. at 373. The circumstances must warrant the supposition that the prosecutor’s decision to “up the ante” was in response to the defendant’s election to pursue an appeal instead of being founded on legitimate factors. See Thigpen, 468 U.S. at 30; Blackledge, 417 U.S. at 27-28.
Guided by this context-specific precedent, we have been called upon to determine whether the presumption of prosecutorial vin*620dictiveness should be extended beyond its single area of application to cases in which a prosecutor, in response to a reversal of a defendant’s convictions, decides for tactical purposes to seek additional charges. The fundamental difference between this case and Blackledge is that here an appellate court eviscerated the trial strategy on which the prosecutor’s initial charging decision was based. Because there was no such glaring intervening force between the first and second trials in Blackledge, a specter of vindictiveness arose. While here there is certainly an opportunity for vindictiveness that should be taken into consideration, “a mere opportunity for vindictiveness is insufficient to justify the imposition of a prophylactic rule.” Goodwin, 457 U.S. at 384. The law is plain that an increased punishment upon retrial after appeal does not necessarily justify the assumption that the prosecutor was motivated by vindictiveness. Blackledge, 417 U.S. at 27.
Ordinarily, the proper course would be to balance the competing interests of prosecutorial discretion and the free exercise of legal rights in view of the procedural and factual context. That task is unnecessary, however, because the Fifth Circuit Court of Appeals has formulated the proper analytical framework in a case strikingly similar to the case at hand. See United States v. Krezdorn, 718 F.2d 1360 (5th Cir. 1983) (en banc), cert. denied, 465 U.S. 1066 (1984). I would follow Krezdorn because it is sound and reasonable, and I would hold that no presumption of vindictiveness arises in this case.
In Krezdorn, the defendant was indicted on five counts of forgery and was convicted of four of them. His convictions were reversed on appeal because the trial court, contrary to Federal Rule of Evidence 404(b), admitted evidence of thirty-two uncharged acts of forgery identical to the charged acts. The appeals court indicated that the uncharged forgeries would have been admissible under the “plan or scheme” exception to Rule 404(b) if the government had charged a conspiracy. On remand, the prosecution reindicted the defendant on four counts of forgery, and added a conspiracy indictment. The conspiracy charge increased the defendant’s potential punishment by five years of imprisonment and $10,000 in fines. The defendant moved to dismiss, alleging prosecutorial vindictiveness, and the trial court granted the motion. On rehearing en banc, the Fifth Circuit reversed. The United States Supreme Court denied certiorari.
The Fifth Circuit’s decision is compelling. The court began by tracing the judicial history of prosecutorial vindictiveness and concluded that it is “a mistake to measure cases in this area of the law against fixed gauges.” Krezdorn, 718 F.2d at 1364. To determine *621whether prosecutorial vindictiveness was present in the context of Krezdorn’s case, the court crafted the following test.
If the defendant challenges as vindictive a prosecutorial decision to increase the number or severity of charges following a successful appeal, the court must examine the prosecutor’s actions in the context of the entire proceedings. If any objective event or combination of events in those proceedings should indicate to a reasonable minded defendant that the prosecutor’s decision to increase the severity of charges was motivated by some purpose other than a vindictive desire to deter or punish appeals, no presumption of vindictiveness is created. In trying the issue of vindictiveness, [assuming no presumption arose,] the prosecutor may offer proof . . . that as a matter of fact his actions were not vindictive. The burden of proof (by a preponderance of the evidence) remains on the defendant who raised the affirmative defense. If, on the other hand, the course of events provides no objective indication that would allay a reasonable apprehension by the defendant that the more serious charge was vindictive, i.e., inspired by a determination to “punish a pesky defendant for exercising his legal rights,” a presumption of vindictiveness applies which cannot be overcome unless the government proves by a preponderance of the evidence that events occurring since the time of the original charge decision altered that initial exercise of the prosecutor’s discretion.
Krezdorn, 718 F.2d at 1365. This approach is prudent because it does not hastily presume vindictiveness simply because the defendant faces additional charges and greater potential punishment. The test to decide whether a presumption arises is not wooden; it requires a reasonable likelihood of vindictiveness in view of the circumstances. To discern the reasonableness of a prosecutor’s conduct, we should, as Krezdorn requires, consider his actions objectively in the context of the entire proceedings.
In Krezdorn, no presumption was created because the prosecutor’s primary purpose in adding the conspiracy charge was to take a course indicated by the appellate court’s evidentiary decision, and the prosecutor represented to the trial court that he did not believe that the defendant would receive a harsher sentence on retrial. See id. These factors, reasoned the court, should have alerted the defendant that the prosecutor’s actions were taken in response to the appellate decision reversing his convictions on evidentiary *622grounds. See id. The court was mindful to avoid confusing the evidentiary principle vindicated on appeal, that the defendant should not have been convicted based on improper evidence, and the exercise of prosecutorial discretion to charge criminal conduct. See id.
The objective circumstances presented by the instant appeal are not distinguishable from Krezdorn. The prosecutor, in the first trial, obtained a pretrial ruling that permitted him to admit evidence of the defendant’s uncharged sexual assaults against the same victim. State v. Marti, 140 N.H. 692, 693, 672 A.2d 709, 710 (1996). The prosecutor, therefore, intended to and did admit evidence of hundreds of uncharged criminal acts. We reversed and remanded, holding that under both New Hampshire Rules of Evidence 403 and 404(b), the probative value of the evidence was substantially outweighed by its prejudicial effect. See id. at 694-95, 672 A.2d at 711. Thé crux of our opinion was that the uncharged acts effectively obscured the charged acts and may have tempted the jury to convict on the basis of the former. See id. at 695, 672 A.2d at 711.
In response to our holding, the prosecutor reindicted the defendant and charged him with the prior sexual assaults we had found objectionable because they were uncharged. The prosecutor, intending once again to place evidence of these crimes before the jury, then moved to consolidate the charges, and the court granted the motion. The defendant moved to dismiss, claiming the prosecutor was motivated by vindictiveness. The prosecutor, in his objection, argued that our decision required him to charge the numerous sexual assaults in order to demonstrate to the jury “the defendant’s extraordinary history of sexual abuse on his daughter.” Indeed, according to the defendant, the prosecutor stated at a pretrial conference that “if the Supreme Court would not let him introduce the prior, uncharged acts, then he would charge the acts.” The prosecutor further argued that he would not seek a harsher sentence were the defendant convicted. In light of these circumstances, and the lack of any evidence of actual vindictiveness, the court rejected the vindictiveness claim.
As the Fifth Circuit held in Krezdorn, I would conclude that no presumption qf vindictiveness was created by the prosecutor’s legitimate efforts to avoid the evidentiary obstacle we placed before him. The only distinction between the cases is that in Krezdorn one conspiracy charge was added, permitting the prosecutor to introduce evidence of thirty-two additional criminal acts, while here 104 charges were added for the purpose of admitting evidence of 104 additional criminal acts. This difference is immaterial, however, *623because the rationale supporting the additional conspiracy charge in Krezdorn equally supports the additional 104 sexual assault charges in this case. The number of the charges is merely a function of the defendant’s lengthy pattern of sexual assault, the prosecutor’s unwavering intention to place evidence of that before the jury, and our holding reversing the evidentiary ruling that allowed the prosecutor to achieve his purpose without having to exercise his discretion in favor of charging additional counts. Absent an impure motive on the part of the prosecutor, a criminal defendant is susceptible of being charged for all of his crimes, regardless of whether the number of those crimes is shocking. Thus, nothing would have prohibited the prosecutor from charging all of the sexual assaults in the first trial if he had not obtained the evidentiary ruling favorable to his strategy.
The majority should not so readily apply a presumption of vindictiveness because it will, in the future, threaten to bind prosecutors to their original charging decisions after the bases for those decisions are undercut on appeal, and when an alternative and legitimate approach is within grasp. We have been cautioned against extension of the presumption because it may, as in this case, “operate in the absence of any proof of an improper motive and thus . . . block a legitimate response to criminal conduct.” Goodwin, 457 U.S. at 373.
Finally, I recognize that today’s decision is based on the New Hampshire Constitution. That alone, however, should not encourage the majority to depart from sound and established federal law regarding prosecutorial vindictiveness. Such would be inconsistent with the majority’s heavy reliance on Goding, a case we decided under federal law.
Even if the majority can properly apply a presumption of vindictiveness in this case, there is abundant evidence on the record before us to rebut it. As I have discussed above, events occurring after the original charging decision altered the considerations underlying the initial exercise of prosecutorial discretion. See Krezdorn, 718 F.2d at 1365. On remand, the prosecutor could not have pursued his original trial strategy to make the jury aware of the defendant’s history of sexually abusing his daughter.
At most, the record reflects the prosecutor’s frustration with our decision reversing the defendant’s convictions. That frustration, however, cannot serve as the basis for a finding of prosecutorial vindictiveness against the defendant. Accordingly, I respectfully dissent.
THAYER, j., joins in the dissent.