OPELIKA, Ala. — The Alabama fan accused of poisoning landmark trees at Auburn’s Toomer’s Corner told police he was assaulted at a gas station Wednesday shortly after leaving the courthouse.
Harvey Updyke Jr., 62, told an officer he was attacked when he stepped out of his car at a gas station on Birmingham Highway, according to Opelika Police Capt. Allan Elkins.
Updyke said he was punched in the head, and believes there was more than one person involved, but he didn’t see who did it. The gas station did not have surveillance video and there were apparently no witnesses, police said.
Updyke was treated for several small bruises and scratches at a hospital, Elkins said.
“All he told me is he didn’t see who hit him and he didn’t know what he was hit with,” Updyke’s attorney Glennon Threatt Jr. said.
“He’s scared but he’s OK. He said he doesn’t remember being hit. He just blacked out and woke up on the ground,” Threatt said.
Earlier, Updyke had made a brief appearance in Lee County District Court, where his attorney waived his right to a preliminary hearing.
Threatt said prosecutors had rejected what he called a “low-ball” plea deal to the district attorney’s office on behalf of Updyke, who wore a crimson-colored tie to a preliminary hearing. The deal would have spared Updyke from going to jail.
Updyke, who spent a night in jail after his arrest, is free on bond. He is charged with first-degree criminal mischief in the poisoning of the trees, where Auburn fans celebrate victories by heaving toilet paper into the branches of the 130-year-old oaks. If convicted, he could face one to 10 years in prison.
“Based on conversations we’ve had, it was clear to me that there was enough evidence to bind this case over to the grand jury,” Threatt said outside the courthouse. “So we agreed to waive the preliminary hearing in return for the state giving us some limited discovery in the case.”
District Attorney Robbie Treese wouldn’t confirm that agreement or discuss the plea offer.
Threatt got his client’s bond conditions changed to allow Updyke, who declined to speak to reporters, to live with relatives in Louisiana.
Alternatives to a prison sentence for Updyke, who has health problems, include outpatient mental health counseling, electronic monitoring and supervised probation, his attorney said.
Updyke has admitted to calling a radio show Jan. 27 saying he poisoned the historic trees with a herbicide known as “Spike 80DF” and to leaving a phone message for an Auburn professor claiming knowledge of the poisoning, court documents said.
But Threatt said his client told police he didn’t poison the trees. He said the deal offer wasn’t an admission of guilt.
“What I’ve got to do is defend him of these charges,” Threatt said. “I’m not his judge, I’m his lawyer.”
He said he would answer questions for Updyke, who stood quietly by with hands clasped in front of him.
“Emotionally, he’s distraught a little bit,” Threatt said. “Nobody wants to be facing jail time. He wants this to be over and know that he’s safe and know that his freedom and liberty will be protected. That’s what I’m trying to do for him.”
The tree poisoning has angered Auburn fans, prompting thousands of people to attend a “Toomer’s Tree Hug” just over a week after the football team won its first national championship in more than a half-century.
Threatt said people have said things that have caused concern for the his client’s safety, and that Updyke’s tires were slashed at a Walmart parking lot. A move to Louisiana would relieve some worries, Threatt said.
“He has a lot of family that loves him,” Threatt said. “They’re very concerned about him, and they want to have him in a loving and nurturing environment. We believe that it was easier to create that environment for him outside the state of Alabama.”
The plight of the trees has shined a harsh light on a rivalry that engulfs a state with no major professional sports teams.
Updyke admitted to poisoning the trees on the radio show, finishing his call with “Roll Damn Tide.” He has children named Crimson Tyde and Bear, after iconic coach Bear Bryant.
Some Alabama fans have defended the oaks, with one group collecting $50,000 for a fund dedicated to the trees.
One of the poisoned trees is not doing well. Many branches don’t have leaves or have much smaller ones. The other tree is not showing any signs of poisoning right now, said Auburn horticulture professor Gary Keever.
The professor said there was no danger to people.
Auburn fans have used Toomer’s Corner as a meeting place since the school was established in 1856. Former Auburn athletic director David Housel said it morphed into what it is today in 1972, when Tigers star Terry Henley said “we’re going to go beat the No. 2 out of Alabama.”
Auburn fans then started the toilet paper tradition after a 17-16 victory.
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