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Saturday, July 16, 2011

No Shit!: Court Of Appeals Of Iowa Implies Statement, "I Got You WIth Shit" Was Not An Admission Of Feces Throwing

During a road trip this week, my wife and I got into a discussion of why the word "shit" is a curse word (I don't remember what prompted the discussion). Why is "shit" a curse word, "crap" a quasi-curse word, and "poo" not a curse word? And why do we use certain animal feces in expressions? Why is something that is nonsense "bullshit" or "horseshit" and not "catshit?" I guess that calling someone "batshit crazy" makes sense because batshit -- guano -- really can make someone crazy. And calling a wimpy person "chickenshit" also makes sense because we also call wimpy people "chicken."

One consequence of using the word "shit" as a profanity is that we don't always know whether a person using the term is cursing or actually referring to feces. Or, at least that was the belief of the Court of Appeals of Iowa in its recent opinion in State v. Landis, 2011 WL 2694717 (Iowa.App. 2011). 

In Landis,

Steven Landis was an inmate....As correctional officer Raleigh Helmick reached down to retrieve a breakfast tray from the food portal of Landis's solitary confinement cell, Landis reached out his hand and squirted Helmick with a stream of brown liquid that smelled like human feces....Helmick immediately dropped the food tray and Landis dropped a toothpaste tube containing a brown substance. Landis started yelling, "I got you with shit." The brown substance soaked through Helmick's uniform shirt onto his t-shirt. He went downstairs to the kitchen area to clean up, and his soiled clothing was given to a supervisor. Throughout the rest of the day Landis told Helmick several times that it was "shit" in the toothpaste tube.

Landis was subsequently charged with assaulting Helmick with feces in violation of Iowa Code section 708.3B  (inmate assault—bodily fluids or secretions). At trial,

Helmick testified the substance Landis sprayed him with "had a terrible odor, smelled like feces, was liquid and brown." Asked how he knew the substance was feces, Landis testified over objection that "[t]he odor, the texture, the color all led me to believe the fact that it was feces, the fact that in the past I have been around other staff who have been hit." He further testified the substance "was mostly liquid, but there were solid pieces in it."...Correctional Officer Kevin Koechle witnessed the assault by Landis. He testified: "Officer Helmick opened the flap, the food flap, the tray came flying out, and right after that Officer Helmick was covered in feces." Asked how he knew it was feces, Koechle responded: "It was a brown substance with a very strong smell of feces." He further testified he heard Landis say "I got you, Helmick. I threw shit on you." Randy VanWye, an investigator at the penitentiary, went to the scene of the assault and took possession of the toothpaste tube. There was still some liquid, semi-solid substance in it. He placed the tube in a paper bag. The tube drained itself into the bag in the evidence locker. VanWye said the contents of the tube had a "very, very disagreeable, very foul odor that was very noticeable of feces."VanWye observed that Helmick's soiled clothing had a "very, very disagreeable odor of feces." Photographs of the toothpaste tube, which is made of clear plastic, depict the tube containing a brown substance. The photograph of Helmick's white tshirt shows it covered in a brown substance.

Landis later moved for a judgment of acquittal, arguing "that with no testing and no expert testimony to establish the brown substance was feces, the jury would be left to speculation and conjecture with regard to an element of the crime, that is, whether the substance was in fact feces." The trial court denied the motion, Landis was convicted, and the Court of Appeals of Iowa affirmed, finding that

The jurors certainly were capable of comprehending the primary facts and of drawing correct conclusions from them. Indeed, it would be a rare person who had no personal experience with feces. We do not believe the identification of feces falls solely within the domain of expert testimony. Upon submission of the evidence, the jury was to decide whether the State had proved the elements of the crime charged and could use their common sense and daily experiences in determining whether the brown substance was feces....Paraphrase of an old adage seems apropos under the circumstances: If it looks like feces, if it smells like feces, if it has the color and texture of feces, then it must be feces. No witness with a degree in scatology was required, nor was scientific testing required to establish the fact the substance was feces

I think that it is clear that this was the correct conclusion, but I find the court's later treatment of another claim by Landis to be odd. After reaching this conclusion, the court acknowledged Landis' claim that "his use of the word 'shit' in reference to the streamer that hit Helmick was not an admission the brown substance was in fact feces and could not therefore support his conviction." The court actually agreed with this argument, holding that

Although a reasonable juror could infer Landis's use of the word referred to feces, we agree Landis's statements, standing alone, would not constitute an admission sufficient to support his conviction.[FN1]

[FN1] “Shit” is defined as excrement. Webster's Third New Int'l Dictionary 2098 (1993). But, the word has also been defined as nonsense, foolishness, something of little value, trivial and usually boastful or inaccurate talk, and a contemptible person. Id. This now ubiquitous word has acquired numerous popular usages apart from its literal meaning. It has been used to describe people, places, and things and to express a wide variety of emotions such as disappointment, disgust, despair, resignation, amazement, awe, shock, anger, and surprise.

The court then gave a laundry list of examples, which you can find in the court's opinion. That said, the court still upheld the conviction, concluding that

While Landis's use of the word "shit" is certainly not dispositive of the issue of the composition of the brown substance he squirted on Helmick, the officers' description of the brown substance, along with their lay opinions the substance was feces, supplied substantial evidence to support Landis's conviction.

Again, I agree with the court's ultimate conclusion, but I am troubled by the court's seeming suggestion that it would of reversed had the officers not described the substance and/or offered opinion testimony that the substance was feces. Landis yelled, "I got you with shit" and later said several times that it was "shit" in the toothpaste. Sure, Landis could have been using the word "shit" in the non-literal sense to refer to something other than feces, but I think that his use of the word was certainly sufficient for a reasonable jury to find that he assaulted Helmick with bodily fluids or secretions.

(Hat tip to Dan Blinka for the link)

-CM

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