appellant robert where robert where was charged with aggravated battery by jail and his jury trial history testified that he was acting in self defense after phillips tried to strike him in the face with a dirty toilet brush yet the trial court denied the defense request to instruct the jury on self defense based on the court's misapprehension of the law reasoning that where could not argue self defense when he had tonight on the witness stand that he had strangled the complainant court's reasoning is wrong for two reasons is testimony in this case and nd if the court incorrectly applied chase law stating that a self defense instruction is inappropriate where the defendant defer the defendant has denied using force because clear clearly here where did the statutory definition of strangulation which grove in part is quote intentionally impeding the normal breathing of an individual by applying pressure on the throat or net of that individual consistent throughout his testimony that he put his arm around philip's neck and at various points of slight pressure he testified quote every time he tried to fight pressure on his neck quote i had a headlock he would where have you talked about having choked mr philips in his direct examination testimony had he not yes on cross examination however in this state asks did you what where was trying to do he wasn't having any rights had he essentially admitted all of the elements of the offense during his direct examination yes he had certainly having done that what would be the effect of the cross examination question that some would go to wager credibility i think so it goes to the waiter credibility and ultimately the jury properly instructed on self defense they have to determine if where his conduct which is mostly undisputed was done in self defense and where it was trying to make clear in his cross examination that he wasn't trying to court he wasn't trying to strangle phillips he was trying to get him to stop fighting and a fair reading of that testimony of the he does say i wasn't trying to strangle a fair reading of his testimony doesn't negate what you had explained elsewhere on direct examination earlier in the cross that he had had it locked and repeatedly put pressure on his neck and choked him that least briefly for a  in the absence of that i don't think you can say that he did not i committing the offense you claiming your brief quote and defendant cannot raise the affirmative defense through an act that he must hire only denies of course is that same really anywhere in any of the cases you've cited the entire i don't know that that particular phrase but certainly looking at the case law a wis the defendant testifies the witnesses testified that someone else not the defendant shot the victim so you know he's entirely denying the use of force his own use of force under those circumstances  where there's no question regarding the defendant's use of force he's intitled to the self defense instruction if the facts support it that really had been  yeah exactly that was it from the get go that defense counsel said in opening that issue here is not what happened but the why the jury had asked about self defense when playing to self defense  the jury understood that self defense was the issue here even without being specifically instructed on it so indeed it was the issue going back to the issue of strang broad statutory definition of strangulation where is testimony phillips testimony videotape of the incident i don't think it's you know i think it is overwhelming and i think that's  so we've argued that this court can review the issue under either prong of them slaine error test or as a matter ineffective assistance of counsel with respect to plain error the evidence here was closely balanced even when talking about the appropriateness of the instruction to try out for it says this is a close call this is a close one there's a strong self defense component here says that phillips probably had it coming so the trial court even acknowledges the closeness of the evidence this is kind of the quintessential closely balanced case because it boils down to a credibility cont between where is description of the fights in philip's description of the fight and once again the jury had asked about self defense point blank which suggests they were considering this on and or you know reasons i'm not certain turned around until the court he was not aware of any errors that would sustain a new trial even though the lack of the instruction really gutted the entire de of choking someone to death as the statute is broader than somebody choking to death that's like saying it's a legal to steal a car and then find a definition of the car that says a  war usually greed then the state didn't in any way define the term strangulation when asked the defendant point blank did you strangle him and he said no that's the extent of well no that was not the extent of it testified on cross examination he did not put his aura around phillips neck he testified that he did not strangle him that he never impeded fellowes airway or breathing and th times that's i think previously said i choked him yes and on cross examination having said that he choked him probably for a nd or two and that his purpose the case but let's back up then accorded self said essentially the same thing at sentencing didn't accord indicate that yeah in fact i kind of agree with you he had come i think i agree with you mr ware and that that the extent that contact was made to you that could be a crime i absolutely agree with that to the extent that you were apprehensive reasonably apprehensive of being hit again or having some offensive contact again you had the right to defend yourself you did that and that of course would merit a self defense instruction but then he says because he denied the strangulation isn't that what the court said the language of the sentencing hearing i do recall because a cop it was the troy court's language when denying the instruction and his lead was who was the defendant was very clear that he did not show  and the seems to me on the self sufficient argument that there is not entitled to say he didn't do it later but he didn't do it but if you find that he did it he was justified in the use of force he didn't do mr mansion let me let me interrupt for a moment isn't let's step back isn't the issue that there is one element the aggressor element is in dispute that's the issue we've got two different theories as to how this fight progress but the fact that it's an dispute doesn't that lend us to the case law in everett and louis we're talking about a very slight ten us sort of aggressive finesse initially use of force that when the defendant approached fellows with the brush he was in fact committing an assault that because he's putting phillips is a reasonable apprehension of being of a battery that's one theory that no real person would agree with it and i think that under that standard the trial course decision was correct here you have an under that scenario i think you've almost got to take your best case  elements of strengthen the relationship and let us know what elements aren't there well the requirements for self defense is that  out kind of force was necessary you have the defendant sitting on top of philip's for what the tape shows to be five minutes phillips is not moving in the there the video shows that the the finot knoxville's the floor got back up and they went back on top of so the this whole idea that the  what you're saying is and this is this is your argument now not the argument that was before the trial the argument before the trial court was basically that the having to night chill king or blocking or cutting off aggressor or any of that wasn't really even a question that was not raised this question now because everybody was in agreement that the victim started the fight right well either that or the they so if you say i did not strangle him i did not show him and he can assert self defense but this you know mr maginnis this is sort of i gotcha argument right it was more than just not strangulation it was his breathing was never impaired period he didn't it was not this rd and not as slim in his testimony to i did not stra well his testimony one hundred was less than clear as to exactly what he was doing he said i would apply pressure in a hedge that had luck but he never did say that he every the argument asked the court took sept the defendant's definition of the charge defense well the defense definition which is the same definition of the statute is the statute define i claim self defense and light this part of my testimony he's doing exactly the truck which is you can't do i claim i didn't do it but if i did i did it in self defense that's very fair summary of the best defense even if the truck was an error in refusing to instruct the jury on self defense i think that the error would be harmless beyond reasonable doubt problem because it seems like you're ignoring reality you're talking in generalities i'm asking you the jury itself the finders of fact in this case  it may be their issue but under the law and the facts here that even with a proper instruction on the self the st they could not have reached a different result because you thank you your honor i have just a i think three brief points to make the st to the extent that there's a question about who the aggressor was or the butt of this whereas response was disproportionate those are all questions that are suited for a properly instructed jury on the matter of self defense that's not something that this court needs to decide it's not something that was so clear from the record that where should have been deprived of self defense instruction to the extent that we are confronted him with the twitter brush phillips to describe any sort of threatening words or assaulting terms that would clearly make him the aggressor that would an appropriate in this case as a factual matter where is testimony was that she never stopped phillips from breathing  repeatedly where says on page two hundred and thirty six on page two hundred and thirty seven of the record where says i never stopped him from breathing he never denies that he you know impeded we're never uses the word indeed but he never denie struct someone's breathing and situations like that that would cover the facts in this case  and i think that's all i have unless this court has any further questions we have any further questions gentlemen and i would ask that this court reversed mr ware's conviction an