State v. Purkapile

No. 1092 November 12, 2026 577 IN THE COURT OF APPEALS OF THE STATE OF OREGON STATE OF OREGON, Plaintiff-Respondent, v. ANTHONY LUCAS PURKAPILE, Defendant-Appellant. Washington County Circuit Court 23CR56684; A185692 Kathleen J. Proctor, Judge. Argued and submitted September 29, 2026, at Enterprise High School. Erik Blumenthal, Deputy Public Defender, argued the cause for appellant. On the brief were Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Brett J. Allin, Deputy Public Defender, Oregon Public Defense Commission. Rolf C. Moan, Assistant Attorney General, argued the cause for respondent. Also on the brief were Dan Rayfield, Attorney General, Paul L. Smith, Solicitor General. Before Tookey, Presiding Judge, Lagesen, Chief Judge, and Egan, Judge. TOOKEY, P. J. Counts 2 and 3 reversed and remanded; otherwise affirmed. 578 State v. Purkapile Cite as 354 Or App 577 (2026) 579 TOOKEY, P. J. In this case, we consider whether defendant intended to use a sharpened toothbrush against his cellmate and the relevance of evidence about how the toothbrush may have been sharpened. Defendant appeals his convictions for unlawful pos- session of a weapon by an inmate, ORS 166.275 (Count 1); unlawful use of a weapon (UUW), ORS 166.220 (Count 2); and menacing, ORS 163.190 (Count 3). Defendant argues that the trial court erred in denying his motions for a judg- ment of acquittal (MJOAs) on Counts 2 and 3, and that the trial court also erred when, at an OEC 104 hearing, it excluded the proposed testimony of defendant’s expert, who would have testified about defendant’s autism. For the reasons explained below, we conclude that the trial court did not err when it denied the MJOAs, but that the trial court did err when it excluded the expert tes- timony. That testimony was relevant to a material fact in the case: whether defendant sharpened a toothbrush by chewing on it. The testimony would have provided the jury with an alternative explanation of why defendant sharp- ened the toothbrush—not to create a weapon but rather because it is common for persons with autism to engage in “self-stim” behaviors like chewing on objects. That expla- nation, in turn, could have affected the jury’s assessment of whether the state met its burden to prove the “intent to use” element of UUW and whether defendant’s statements to his cellmate were meant to place his cellmate in fear of imminent serious physical injury. Therefore, the errone- ous exclusion of the evidence was not harmless with respect to Counts 2 and 3, and we reverse and remand on those counts. I. FACTUAL AND PROCEDURAL BACKGROUND Defendant and D were incarcerated in a cell at Coffee Creek Correctional Facility. They had been cellmates for a couple of days, and they “didn’t really have a problem,” although, according to D, defendant “stunk a little bit.” 580 State v. Purkapile According to defendant, defendant was nervous about being with a “new celly.”1 On July 18, 2023, defendant and D were in their cell, and defendant was on the top bunk reading. According to D, defendant had “a toothbrush that he was shaving down.” D had learned that defendant planned to use it on “someone else while they’re sleeping or whatever at a different institu- tion.” D had also heard that defendant was “going to try to get me.” D asked defendant whether defendant planned “to hit me while I’m sleeping?” Defendant denied it, but also asked, “What are you going to do about it?” Then defendant said, “[W]ait till you go to sleep.” Defendant had the tooth- brush with him in a book on the top bunk when he said that to D. When defendant said, “[W]ait till you go to sleep,” D “took it as a threat.” D believed that defendant was going to stab D in his sleep and that defendant had threatened his life. Defendant did not point the sharpened toothbrush at D when he made those statements. Nevertheless, D felt like he was “in danger.” According to D, defendant had told D about “potentially killing other people or stabbing other people.” D wanted to “settle this right then and there.” D was not going to sleep in the cell with defendant “potentially trying to stab me or whatever his plans were.” D grabbed defendant’s mattress and tried to drag defendant off the top bunk. D wanted to fight defendant, but defendant “got in the corner so he wouldn’t get dragged off the top bunk.” Defendant threw books at D and indicated that he was going to hit the “panic button.” When defendant hit the button,2 officers came into the cell and “they cuffed us both up.” D thought that defen- dant was “just going to get some hole time or whatever.” 1 Defendant did not testify at his jury trial, but, during the trial, the state played a recording of defendant’s interview with Department of Corrections (DOC) inspectors. 2 In his interview with DOC inspectors, defendant stated that it was D who hit the button. Although the parties do not provide additional information, the record suggests that cells at the facility are equipped with a button to alert cor- rectional officers in case of an emergency. Cite as 354 Or App 577 (2026) 581 Defendant had thrown the toothbrush on a desk where the officers found it. D described the toothbrush as a “shank.” D rec- ognized that he could be considered a “snitch” because of what happened, but D testified that he had wanted to fight defendant, and D did not want to get correctional officers involved. On a later telephone call, D stated that defendant was “panicking” during the confrontation and that defen- dant had “fear in his eyes.” On a call, D also described defen- dant as having autism and as “retarded.” Based on that incident in the cell, the state charged defendant with three crimes: unlawful possession of a weapon by an inmate, UUW, and menacing. In addition to hearing testimony from D at defendant’s jury trial, the jury also heard testimony from a correctional officer who responded to the cell and found the sharpened toothbrush. Defendant told the officer that the toothbrush was “only sharpened like that because he was chewing on it.” The offi- cer took photographs of the toothbrush.3 The officer testified that concrete in the cells in Coffee Creek could be used to create sharpened toothbrushes, but “[u]sually it’s when they go out to the yard, cause it’s rougher concrete.” Defendant told DOC inspectors that he “chew[s] on stuff” when he gets nervous, that he “ended up chewing on the toothbrush,” and “[t]hat’s why it was slightly to a point.” According to defendant, that was “the only day” he had been chewing on the toothbrush. An inspector testified that she did not “observe anything that looked like bite marks” or “chew marks” on the toothbrush. After the state rested, defendant sought MJOAs on the charges of UUW and menacing. The trial court denied the MJOAs. Outside the presence of the jury, the trial court conducted an OEC 104 hearing on the admissibility of 3 Both the actual toothbrush and photographs of the toothbrush were received into evidence at defendant’s trial. At the request of appellant’s coun- sel, the toothbrush was transmitted to the Court of Appeals. In reviewing the record, as well as reviewing the documentary exhibits, the court has examined the actual toothbrush. 582 State v. Purkapile testimony from Dr. Leslie Carter, an expert on autism.4 At the hearing, Carter testified that she reviewed defendant’s medical records and met with him in person, and that he had a diagnosis of autism. Carter testified that defendant had “level one” autism, which is “high functioning.” Carter explained that autistic people often engage in repetitive behaviors referred to as “self-stim” behaviors, which are “used to reduce anxiety and stress.” Carter testified that defendant had “a history of chewing on things.” She testi- fied regarding the “social deficits” of persons diagnosed with autism. On cross-examination, Carter acknowledged that it was not obvious from the photographs that defendant had chewed on the toothbrush. After hearing the expert’s proposed testimony, as well as arguments from the parties, the trial court deter- mined that Carter’s testimony was not admissible because it was not relevant and it would constitute vouching for defen- dant. Defendant did not testify or call any other witnesses. The jury found defendant guilty of the charges. II. ANALYSIS On appeal, defendant argues that the trial court erred in denying his MJOAs and in excluding the testimony of his expert witness. As we explain, we conclude that the trial court did not err in denying the MJOAs, but the trial court did err in excluding the expert testimony and the error was not harmless. A. Denial of the MJOAs on the Charges of UUW and Menacing In his first assignment of error (relating to Count 2, UUW) and his second assignment of error (related to Count 3, menacing), defendant argues that the trial court erred in denying his MJOAs on those charges. On review of the denial of an MJOA, we examine the evidence “in the light most favorable to the state to determine whether a rational trier of fact, accepting reasonable inferences and reasonable 4 OEC 104(1) provides in part that “[p]reliminary questions concerning * * * the admissibility of evidence shall be determined by the court,” and OEC 104(3) provides, in part, that the hearings must “be conducted out of the hearing of the jury.” Cite as 354 Or App 577 (2026) 583 credibility choices, could have found the essential element of the crime beyond a reasonable doubt.” State v. Cunningham, 320 Or 47, 63, 880 P2d 431 (1994), cert den, 514 US 1005 (1995). 1. Sufficient evidence of UUW Starting with the first assignment of error (relating to Count 2, UUW), ORS 166.220(1)(a) provides, in part, that “[a] person commits the crime of [UUW] if the person * * * [a] ttempts to use unlawfully against another, or carries or pos- sesses with intent to use unlawfully against another, any dangerous or deadly weapon * * *.” The term “use” in ORS 166.220, “refers both to employment of a weapon to inflict harm or injury and employment of a weapon to threaten immediate harm or injury.” State v. Ziska/Garza, 355 Or 799, 811, 334 P3d 964 (2014). Here, defendant argues that there was insufficient evidence that he intended to use the sharpened toothbrush unlawfully. As defendant points out, there was no evidence that he brandished the toothbrush, he did not initiate the confrontation with D, and he made only “vague statement[s] that did not reference a weapon or violence.” According to defendant, the instant case is like State v. Garibay, 307 Or App 722, 730, 478 P3d 1006 (2020), in which we reversed a conviction for UUW because, although the defendant had a gun and used it to shoot one person, there was insufficient evidence that the defendant also intended to use the gun against a second person. We are not persuaded by defendant’s reliance on Garibay. In Garibay, there was evidence that the defendant “meant to shoot and did shoot M—whose physical proximity to F at the time of the shooting is unclear,” but there was no evidence that the defendant ever threatened F with the gun. Id. at 730. By contrast, here, defendant and D were the only two persons in the cell. D testified that he knew defendant had a sharpened toothbrush, and when D directly asked whether defendant intended “to hit me while I’m sleeping,” defendant responded by saying, “What are you going to do about it?” and “wait till you go to sleep.” 584 State v. Purkapile In determining that there was sufficient evidence of UUW, the jury could also have relied on the testimony of the correctional officer, who explained that incarcerated persons can modify objects, like toothbrushes, by rubbing them on concrete to create dangerous weapons. Although defendant’s statements might have been less threatening in another context, based on making them while alone with D in the cell, and in response to D’s question about whether defendant intended to “hit” D, a rational trier of fact could conclude that defendant intended to use the sharpened toothbrush against D to inflict harm or injury or to threaten immediate harm or injury. That is how D interpreted defen- dant’s statements, which D viewed as a threat to his life. We recognize that, in making those statements, defendant did not brandish the sharpened toothbrush. But, in that respect, the instant case is like State v. McAuliffe, 276 Or App 259, 366 P3d 1206, rev den, 359 Or 847 (2016), in which we affirmed a UUW conviction. In McAuliffe, the defendant was angry about a plane flying low over his prop- erty, and the defendant held a shotgun shell up to the air- plane “to send the pilot a message.” Id. at 261. Although the defendant did not aim or fire his shotgun at the plane, we concluded that the defendant’s conduct was sufficient for a charge of UUW. Id. at 265-66. Similarly, here, because defendant said, “What are you going to do about it?” and “wait till you go to sleep,” in response to a direct inquiry from his cellmate about whether defendant intended to use the sharpened toothbrush against his cellmate, there was sufficient evidence for the jury to determine whether defen- dant intended to use the weapon unlawfully. We emphasize that our determination is guided by the standard of review, which requires us to view the evi- dence in the light most favorable to the state. Cunningham, 320 Or at 63. As we have explained in other cases address- ing MJOAs on charges of UUW, “[t]hat a jury might reason- ably have reached a different conclusion is beside the point. On appeal, ‘our task is not to weigh the evidence, it is only to determine whether there was legally sufficient evidence to support the challenged conviction.’ ” State v. Severson, 325 Or App 550, 556, 529 P3d 302, rev den, 371 Or 332 (2023) Cite as 354 Or App 577 (2026) 585 (quoting McAuliffe, 276 Or App at 266). Applying that stan- dard, we conclude there was sufficient evidence and the trial court did not err in denying the MJOA on Count 2. 2. Sufficient evidence of menacing Turning to the second assignment of error (relat- ing to Count 3, menacing), “[a] person commits the crime of menacing if by word or conduct the person intentionally attempts to place another person in fear of imminent seri- ous physical injury.” ORS 163.190(1). The threatened harm “must be imminent and serious.” State v. Garcias, 296 Or 688, 699, 679 P2d 1354 (1984). For speech to constitute menacing, the threatened injury must be “ ‘near at hand,’ ‘impending,’ or ‘menacingly near.’ ” State ex rel Juv. Dept. v. Dompeling, 171 Or App 692, 695, 17 P3d 535 (2000) (relying on a dictionary definition of “imminent”). Defendant argues that his statement “wait till you go to sleep” was “the kind of empty threat that does not con- stitute menacing, and it was not accompanied by any con- duct that would make it realistic and imminent.” Defendant points out that, in State v. Hejazi, 323 Or App 752, 524 P3d 534 (2023), and State v. C. S., 275 Or App 126, 365 P3d 535 (2015), the relevant statements were far more threatening than the vague statements at issue here, but that we never- theless determined that they were insufficient to constitute menacing. For example, in Hejazi, 323 Or App at 756, the defendant had said, “I’m going to kill you and your family,’’ but then walked quickly away. And in C. S., 275 Or App at 128-33, a student threatened to kill three other students, but his threats did not imply that the harm was imminent. Once again, what distinguishes this case are the circumstances under which the statements were made. Defendant said, “What are you going to do about it?” and “wait till you go to sleep,” in response to a direct inquiry from his cellmate about whether defendant intended to use the sharpened toothbrush against his cellmate, and D had no choice but to sleep in the cell in close proximity to defen- dant who was on the top bunk. We think that that context converts what might otherwise be vague statements into ones that would place a person in fear of imminent serious 586 State v. Purkapile physical injury, especially given the correctional officer’s testimony about incarcerated persons modifying objects into weapons by sharpening them—under those circumstances, the evidence was legally sufficient for a jury to determine that defendant had committed the crime of menacing. See, e.g., Dompeling, 171 Or App at 696 (in a case in which a youth threatened to stab her mother “in her sleep,” we deter- mined that the threats were “sufficiently near at hand to be imminent”). The trial court did not err in denying the MJOA on Count 3. B. Exclusion of Expert Testimony In his third, fourth, and fifth assignments of error, defendant argues that the trial court erred when it excluded the proposed testimony of the defense expert regarding defendant’s autism diagnosis, “self-stim” behaviors includ- ing chewing, and “social deficits” of persons with autism. The trial court excluded the evidence on relevance grounds, determining that the jurors could decide for themselves whether defendant had chewed on the toothbrush by looking at it. We conclude that the trial court erred in determining that the expert’s testimony was not relevant. 1. Carter’s testimony was relevant to the charges of UUW and menacing. Whether evidence is relevant presents a question of law. State v. Titus, 328 Or 475, 481, 982 P2d 1133 (1999). Evidence is relevant when it has “any tendency to make the existence of any fact that is of consequence to the determi- nation of the action more probable or less probable than it would be without the evidence.” OEC 401. That rule of evi- dence “establishes a very low threshold for the admission of evidence; evidence is relevant so long as it increases or decreases, even slightly, the probability of the existence of a fact that is of consequence to the determination of the action.” State v. Barone, 329 Or 210, 238, 986 P2d 5 (1999), cert den, 528 US 1086 (2000) (internal quotation marks omitted); see also State v. Cox, 337 Or 477, 485, 98 P3d 1103 (2004) (“Evidence is relevant if it increases or decreases, even slightly, the probability of the existence of any material fact in issue.”). Cite as 354 Or App 577 (2026) 587 Here, the state argues that “[w]hether the tooth- brush’s sharpened status resulted from defendant chewing on it, or whether it resulted from defendant sharpening it on concrete, was not relevant to any element of the charged crimes.” We agree with the state that evidence about how the toothbrush was sharpened was not relevant to the ele- ments of Count 1, which charged defendant with unlawful possession of a weapon by an inmate, and which required the state to prove that defendant was a “person committed to any institution,” who possessed or carried “any dangerous instrument, or any weapon including but not limited to any * * * sharp instrument.” ORS 166.275. In our view, whether defendant sharpened the toothbrush by chewing on it or why he did so were not facts of consequence to the deter- mination of whether defendant violated ORS 166.275, and defendant fails to explain how Carter’s proposed testimony was relevant to the elements of that crime.5 However, we reach a different conclusion with respect to Count 2, which charged UUW, and Count 3, which charged menacing. As already noted, for UUW, the state was required to prove that defendant possessed a dangerous weapon “with intent to use” it “unlawfully against another.” ORS 166.220(1)(a). And to prove menacing, the state had to prove that defendant intentionally attempted “to place another person in fear of imminent serious physical injury.” ORS 163.190(1). Given the elements of those crimes, we think that whether defendant sharpened the toothbrush by chewing on it, and why he did so, are facts of consequence. 5 On appeal, defendant makes a general argument about the relevance of Carter’s testimony, but he does not explain how it was relevant to Count 1, which charged unlawful possession of a weapon by an inmate pursuant to ORS 166.275. Later in his brief, defendant suggests in a footnote that the evidence was insufficient to prove that defendant possessed a “dangerous weapon” under ORS 161.015(1), but it is not clear that the definition applies to ORS 166.275, which prohibits the possession of “any dangerous instrument” or any weapon including a “sharp instrument.” In any event, that question is distinct from the question of relevance. Because defendant fails to explain how Carter’s testimony was relevant to Count 1, we do not consider the issue further. See Beall Transport Equipment Co. v. Southern Pacific, 186 Or App 696, 700 n 2, 64 P3d 1193, adh’d to as clarified on recons, 187 Or App 472, 68 P3d 259 (2003) (explaining that it is not “our proper function to make or develop a party’s argument”). 588 State v. Purkapile OEC 401. As Carter explained at the OEC 104 hearing, she would have testified that persons with autism, like defen- dant, often engage in “self-stim” behaviors, which are “used to reduce anxiety and stress,” and chewing on objects is an example of a self-stim behavior. Carter would also have tes- tified that defendant had a history of chewing on things. On appeal, the state argues that “[e]ven if Dr. Carter’s testimony made it more likely that defendant had chewed the toothbrush,” that testimony was not rele- vant to Counts 2 or 3, because, according to the state, it was “undisputed” that, when defendant told D, “[W]ait till you go to sleep,” defendant was carrying or possessing a dangerous weapon and was “fully aware” that it was capable of causing injury. Perhaps that argument has some traction, but in the end, it does not carry the day given the circumstances of this case. We think that if the trial court had admitted Carter’s testimony, then it would have been more proba- ble that the jury would have concluded that defendant just chewed on the toothbrush. See OEC 401 (stating that evi- dence is relevant when it makes a fact of consequence to the determination of the action “more probable or less prob- able than it would be without the evidence”). And Carter’s testimony also provided an alternative explanation of why defendant had done so; namely, because it is common for persons with autism to engage in “self-stim” behaviors when they are nervous. That alternative theory of the case could have led the jury to doubt whether defendant sharpened the toothbrush to make a weapon or to use it to threaten others with harm. We agree with the state that defendant must have been aware that he possessed a sharpened object when he said to D, “What are you going to do about it?” and “wait till you go to sleep.” Nonetheless, those statements are suffi- ciently vague that defendant’s alternative explanation of why he had the sharpened object could have led the jury to ques- tion whether, by using those words, defendant intended to employ the toothbrush to inflict harm or injury or to threaten immediate harm or injury. See Ziska/Garza, 355 Or at 811 (explaining that “use” in UUW means the “employment of a Cite as 354 Or App 577 (2026) 589 weapon to inflict harm or injury and employment of a weapon to threaten immediate harm or injury”); see Hejazi, 323 Or App at 757 (explaining that menacing requires statements that threaten imminent injury). Instead, the jury could have concluded that, by using those words, defendant was merely expressing his alarm, nervousness, or anxiety, especially given that D had initiated the confrontation. In other words, for the charges of UUW and men- acing, how the toothbrush came to be sharpened, and why defendant sharpened it, were facts of consequence. OEC 401. Carter’s testimony could have weighed against—at least to some degree—the state’s theory that defendant intended to use the toothbrush to harm or threaten his cellmate or others. Because “evidence is relevant so long as it increases or decreases, even slightly, the probability of the existence of a fact that is of consequence to the determination of the action” Barone, 329 Or at 238, we conclude that the trial court erred in determining that the evidence was not rele- vant to the charges of UUW and menacing.6 2. The trial court’s error was not harmless. Next, we consider whether excluding Carter’s testi- mony was harmless. “Evidentiary error is not presumed to be harmful, OEC 103(1), and, thus, we must affirm defen- dant’s conviction if ‘there [is] little likelihood that the par- ticular error affected the verdict.’ ” State v. Torres-Rivas, 247 Or App 1, 6, 268 P3d 729 (2011) (quoting State v. Davis, 336 Or 19, 32, 77 P3d 1111 (2003)). We conclude that the excluded evidence was not harmless with respect to Counts 2 and 3, which charged UUW and menacing. Carter’s testimony would have sup- ported defendant’s claim that the toothbrush was sharp because he chewed on it. And Carter’s testimony would have provided the jury with an alternative explanation of why defendant had a sharpened toothbrush; namely, because it is common for persons with autism to engage in “self-stim behaviors,” like chewing on objects, to reduce nervousness or anxiety. 6 Defendant also argues that the evidence was relevant to show that D was biased against defendant, but it is unnecessary to reach that argument. 590 State v. Purkapile As the Supreme Court has explained, excluded evi- dence is not likely to be harmless when it goes “directly to the heart of defendant’s factual theory of the case.” Davis, 336 Or at 34. During closing arguments, the prosecutor told the jury, “If you go back there and you look at this toothbrush and you think it ended up in that shape because he chewed on it * * * then you need to vote not guilty,” which indicates that the issues of whether defendant chewed on the tooth- brush and why he did so were central to the case. Defendant “was entitled to prove his theory of the case by presenting relevant, admissible evidence to the jury. We cannot say, on the record before us, that there was little likelihood that the erroneous exclusion of * * * [the testimony of the autism expert] affected the jury’s verdict.” Id. at 34. We further note that the trial court stated that Carter’s testimony was also inadmissible as vouching for defendant, but, on appeal, the state does not contend that Carter’s testimony was vouch- ing, and we agree. That vouching would not have been a valid reason to exclude Carter’s testimony underscores the point that the trial court’s error in excluding the testimony as irrelevant was not harmless. We therefore reverse and remand defendant’s convictions for UUW and menacing. Counts 2 and 3 reversed and remanded; otherwise affirmed.