possibly could do that if they want to do  can be committed by an actual battery an attempted battery where he's threatened a battery whereas on the other hand the felony charge can only be committed by an actual battery or an attempted battery assault element part of the charge of both the greater and lesser included offense could have been there down from the a circuit language of the statute and explicitly set out the gas emissions of strangulation and suffocation and in that instruction it required actual or attempted strangulation or suffocation so require a bachelor attempted battery the language in the felony instruction that i am i'm not making myself clear this is the think the assault definition could have been modified to fit the facts of that case and  and remain identical with respect to the two charges without creating a broader  taking taking perhaps taking care of your problem there would be there would be no the jury could only convict of the simple of salt if there was indeed spottily contact of some time well have a question st let me try let me try another all this procedural question what was the stated basis for objecting to a lesser included instruction you're saying no so the question then is not invited to air but why isn't there a forfeiture of the argument you're raising on appeal sideway that it would review all only to see if there was a plane  counsel said if you're going to give one we agree the assault simple assault is the right one why isn't that at least a forfeiture of what you're arguing on appeal you know our it's not a four picture because the district cour mismatch based on the quotes that i gave earlier that the district court doesn't preserve objections by making rulings as i understand affirm the simple assault conviction in this case and my views are two questions before the court st whether the argument now made feel was waived or forfeited and nd whether simple assault is an appropriate lesser included  as the court has asked about the waiver question i'll go straight to that as to the record on what we call the waiver what we have here is not an uncommon trial situation the question of whether to give any lesser included at all arose when the final instructions were being settled and one side or the spencer objected to any lesser included being given at all there was not a legal reason given for that objection it appears that it was simply a strategic choice counsel indicated he wanted to speak with his client then he returned to tell the court that he wanted no lesser included all eventually they felt it best to go all or nothing before the jury on a charge defense not give them a lesser option and so that question whether it was appropriate to give any lesser whether it was inappropriate to give any lesser included all that's not what's being argued about in this appeal instead what's being appealed and defense counsel resisted that effort to include more attempt language and argue that the model instruction was appropriate in other words arguing for the instruction that included the simple assault definition  and thirty eight dollars the district court agreed with defense account with defense counsel and defense counsel further stated that there was no objection to the model instruction including that simple assault definition of assault so then the government later and thirty eight generally require some physical contact but defense counsel pressed back ultimately telling the court and here's a quote and so the defense's position if the court were to give a lesser included that simple assault would be the appropriate laster and court that's trial transcript page two hundred and ninety five dollars ultimately the court agreed with defense counsel decided to go with simple assault commenting that it was siding with government said this is fine with us but we would have preferred strike and did it and then defense counsel says well i object to any lesser included but if if you're going to get want to type this is this this is would be my preference there's two points that went at which defense counsel says that their position is that simple assault is the appropriate lesser included offense one is that  and defense counsel said we like the easier ones right thanks surprise and then everybody retires to take to decide their positions right and then when the court is then settling the instruction having announced that it's going to go with the government's view of striking beginning and we're moving the court recesses for a moment to finalize the instruction comes back and says you know as i thought about this more i'm going to side with what the defense thinks is appropriate and go with simple assault and there again my my reading is that the court the point that instruction proposal on the  table well at that point the court was analysing what the final instructions were going to be so it was at the point at which the court gone back having ruled that striking beating a little bit was appropriate the court changed its mind  and there again the defense counsel said that they believe that that was the appropriate lesser included still art still to make you think that there is any don't think there is in here is the reason your honor because there's also an issue going on with the statute itself that is not really being discussed here which is that unlike the other subsection of the assault statute one  reality is that the charge defense here can't be proved without showing actual physical contact whatever the well but i thought the claim of all brass on the lesser included wasn't the attempt parnate was the threat of injury are well i guess and i think that to dovetail together in the sense that you know simple assault can be pro can be strangulation substantial steps taken and it would also be a simple assault under the no contact version of simple assault and by the way that's just not in that that's not just an academic point here striking beating and wounding lesser included d it noticed that assault is defined in the model instruction differently it you know the striking beating and wounding only includes harmful an offensive touching there must be physical context of the court comes back and sa quote that made me made the court think a bit more about the argument of the attempt and the defendant possibly being guilty based on an attempt and call so the court is reasoning that is least in that scenario in the scenario before the court here it was possible the jury could find mr stricker guilty of of an attempt and therefore simple assault was the preferable lesser included that's what led the court to choosing simple assault that was also not a or under these facts mr stricker's defense was that the victim was not credible that the physical evidence showed no signs that she was assaulted yet there was clearly a skirmish of some sort other included that if the court has to give one this is the one the defense thinks is appropriate now that tells me that the language was on the table that both lawyers were looking at language that those of the final that the court st asked the parties whether a lesser included was appropriate identified striking me and i've read i've read all that this is this is the this is the end of the then the past this right decided it was that i drafted for the lawyers which was a striking beating that would be instruction then comes back and says you know i've thought about it more and because of the attempt here i have it's made the court think about this and i'm shifting it to simple assault like right now but that wasn't the document on the table so both lawyers could see the potential problem that's now being argued in court for whatever that's worth i mean for whatever difference it makes it strikes as relevant i'm not sure we're where i come out of it here i don't i'm trying to get the facts straight from from the transcript yeah and your honor i think i understand what you're asking i wasn't in the row so i can't i don't want to leave the court astray on whether the i i think when the the with all due respect i think when the transcript is read it is complicated because there is this back and forth but i believe that  if the court is inclined to side against the government here the government certainly didn't invite the issue and we had a district courts templi following the model jury instructions in terms of picking t