case it's we're dealing with essentially a credibility contest we have two different versions of the case they're both credible they contradict each other and there's no physical evidence corroborating or contradicting either  well i think the way we are approaching this case is relooking at the role as formulated in here now we're looking at what the last formulated inherent in our understanding is that's still good law it's certainly possible that the court would change and then go through your  i'd like to explain why this is a credibility contest as they said in naylor if you have to merge ends of an event that are both credible they contradict each other there's no physical evidence corroborating  contradicting either version and the trier facts are terminations of credibility is what the case turns on that's a credibility contest now here the state argued that the it was overwhelming evidence defendant was guilty the only way that there could be overwhelming evidence in this case the defendant's guilt if that's what it is if that's the only evidence that was presented now the state presented the testimony of three deputies they all testified to essentially the same events they went asked see the custody order gave it back to them he poked one of the deputies in the shoulder they advised him he was under arrest and when they attempted to arrest him he resisted and this resulted in scratches to deputy morris hanson wrist now certainly if that were the only evidence that was presented that would be overwhelming evidence of the defendant's guilt but that's not the only evidence that was presented the defense witnesses testified to it was essentially the opposite version of events they testified that same circumstances  which is family friend openside be the defendant's brother and the defendant testified on his own behalf there's also samantha russell and his girlfriend she didn't witness the events she testified to introduce the photos of the defendant's injuries and so those three witnesses testify that the deputies came to the settee family home in the early morning hours serve a cuss you on the stand can bring comes to the door she's a family friend now she they they ask her if anyone was home she said she didn't know she explained why she didn't know she stayed over the night before the only person she saw was the defendant's father howard who had left earlier that morning to see the farmer he left early for work and so when the deputies came in the early morning hours she said she didn't know whether anyone else was home the deputies reality out or they were asking to go in the house she said she couldn't give them permission because she didn't live there this woke up the defendant he comes to the door an argument ensues because they want to get into the house  then oakland seventy the defense brother comes to the window and is watching these events as well at one point one of the deputies yells assault which surprised oakland and oakland seven angela dangling because they didn't see any physical contact the defendant testified that he didn't make any physical contact with the deputies he puts his hands up and says i'm calm i'm cool they grab him by the arms they pull him off the porch onto the gravel driveway which is right in front of the house he's not wearing any shoes he's not wearing any socks or shirt and according to the defense witnesses he gets pulled and thrown on to the gravel nearly the whole time they're holding his arms and the only moving he does is to try to stand up because the gravels hurting him there are pictures introduced showing the injuries that he suffered because of the gravel  that were the only evidence that was presented it would look like overwhelming evidence the defendants not being guilty but what we have here are two different versions of the same event and whether or not the defendant is guilty depends on the trier facts accommodationist credibility  principles or three won't be principles which are the presumption of innocence and the state has to prove the defendant guilty beyond reasonable doubt we have a closely vallance case with all things being equal it's really just a credibility contest and you don't have the assurance that the jury assert that when you have a four thirty one b here i don't know how you would actually show it short of impeaching the jury's verdict and asking the post verdict whether they understood and accepted those principles or if they must it was a really obvious well we're not asserting here it's conditional respectfully i mean i understand what you're saying but i think that in this case were asserting that it was the plane error because it was a cause that alan's case and because it was  credibility contest in light of or yes and so on that on the first issue we say that it's a closely balance case the state needs new claims about the defense witnesses not being credible we assert that those claims those arguments are based on taking the diff deputies testimony as truth so specifically state argue that drinking bring was incredible because she told the deputies that no one was home and in fact people were home but then can bring testify that she told the deputies she wasn't sure she explained why that was that's where the jury the way the state also argue that neither dane can bring our oakland said we were credible because they were they couldn't feel the defendant or the deputies would know because they could feel the defendant again that assumes that the deputies were telling the truth and that's for the jury to determine and the state also argued that the defendant was impeached by stipulation which is to simply not true the defendant stipulated to the testimony that officer martin would give which is that he was there the day before the incident occurred he attempted to serve the custody order and the defendant told him that bonny said to his mother who allegedly had the child the issue the custody order was running errands the defendant thinking the defendant stipulated to that testimony not true that that testimony the defendant if i had to the opposite he said he told we're not the opposite but different information he told officer martin that his mother was on vacation and that's exactly what he testified that he told the deputies and the deputies corroborated that so there was no impeachment here there was contrary testimony and because there is error in this case is closed the balance case we sit that it was plainer and  comment on a drink closing arguments to infer his guilt under dewalt cannot use a defendant's post arrest islands to impeach the defendant or to otherwise create and france so we draw on doyle for that proposition we cited to simmons and our brief we said this is very yes i'd like to just begin on that the context that comment during closing argument we did provide context in the opening brief and in the high of that at that a statement and if i could read that context to make it very clear that the prosecutor was in fact referencing the defendant he starts out saying clearly what happened that morning was because mr sethi decided to take this to a different level because the defendant decided he didn't want to deal with these officers in a peaceful way and i don't think mr savvis testimony here today is just not believable the officers testimony were consistent they all made sense the officers testimony was based on reports to meet in october of two thousand and eleven there are no statements made by any defense witnesses to anyone for cement about what happened that day i think in light of the fact that mr sethi testified on his behalf and the prosecutor begins that section by referencing the defendant it's very clear with the principle is that if he agrees to speak after the miranda rights are given and then requests an answer the interview comments on this fact alone without further exploitation by the state is not a do i wish we are arguing there is for the exploitation the prosecutor use that information very clearly he didn't say angela dangan brain didn't make a statement no one said he didn't make a statement he said all the defense witnesses and then a case where the defendant testifies you can't make a statement like that that violates principle of doyle it's so we respectfully disagree and say that it was there and it didn't violate doyle when the deputy testified and then when it was referenced in closing argument we are teaching you live there is another point i wanted to make the the state is characterize our argument we are very clear from the