                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 05-4059
                                   ___________

Katherine B. Warren,                 *
                                     *
             Appellant,              *
                                     *
      v.                             * Appeal from the United States
                                     * District Court for the
Champion Enterprises, Inc.; Champion * Eastern District of Missouri.
Home Builders Company, doing         *
business as Champion Homes of        *   [UNPUBLISHED]
Tennessee,                           *
                                     *
             Appellees.              *
                                ___________

                             Submitted: October 31, 2006
                                Filed: November 1, 2006
                                 ___________

Before MURPHY, BYE, and MELLOY, Circuit Judges.
                           ___________

PER CURIAM.

       Katherine B. Warren appeals from the district court’s1 entry of summary
judgment in favor of defendants in her personal injury action. The district court held
that Warren failed to raise genuine issues of material fact supporting her contention
that the “unsound mind” provision of Tennessee’s tolling statute excused her failure

      1
        The Honorable Henry E. Autrey, United States District Judge for the Eastern
District of Missouri.
to file within the one-year statute of limitations. See Tenn. Code Ann. § 28-1-106.
Having carefully reviewed the record de novo, see Jacob-Mua v. Veneman, 289 F.3d
517, 520 (8th Cir. 2002), we find the district court’s analysis to be correct, thorough,
and well-reasoned. Accordingly, we affirm. See 8th Cir. R. 47B.
                        ______________________________

                                          -2-


77 Wn.2d 838 (1970)
467 P.2d 284
THE STATE OF WASHINGTON, Respondent,
v.
JESSE EUGENE HAISLIP, Appellant.[*]
No. 40491.
The Supreme Court of Washington, Department Two.
April 9, 1970.
Hobart S. Dawson and Byron L. Swedberg, for appellant (appointed counsel for appeal).
Stan Pitkin and James P. Thompson, for respondent.
FINLEY, J.
Jesse Haislip was charged and convicted of two counts of forgery. He was also subsequently charged with being a habitual criminal. He was found guilty as charged and sentenced to life imprisonment. He now appeals from these judgments and the sentence imposed.
Both counts of forgery involved checks for $20, payable to cash from the account of Delbert Freeman in the Northwestern Commercial Bank in Bellingham, Washington. Haislip had been a friend of Freeman and on one occasion accompanied Freeman to the trailer where Freeman lived. It is not questioned that the defendant had the opportunity to take several blank checks while he was visiting the trailer.
The state introduced no evidence by anyone who recognized or remembered Haislip as being the one who passed the check. Indeed, the defendant called the manager and several other employees of the grocery where one of the checks was cashed. All testified that they knew Haislip by sight and that they did not remember his cashing the checks in question.
*840 Most of the state's case was built upon the testimony by Sergeant Kelsen from the Seattle Police Department, an expert on handwriting. He made comparisons between the two forgeries and three genuine checks which were in defendant's handwriting. He concluded that the defendant had written the figures and words for the dollar amount and in all probability had written the word "cash" on both forgeries. He stated that he had no opinion and was unable to testify about the identity of the author of the forged signatures.
At the conclusion of the trial, the jury returned a verdict of guilty on both counts. Haislip was subsequently sentenced to life imprisonment upon a finding of guilty to a habitual criminal charge.
There are a number of assignments of error upon which appellant Haislip relies. They relate to errors in instructions on expert testimony, the presumption of innocence, direct and circumstantial evidence, reasonable doubt, and the law governing the crime of forgery. Appellant also contends that adverse pretrial publicity was prejudicial and made it impossible for him to have a fair trial.
The most serious challenge to the validity of the conviction evolves around the failure of the state to introduce expert testimony tending to show that the signature on the checks in question was similar to the handwriting of appellant. He contends that there should have been an instruction given which in essence would have limited the word "forge" to the false making of a signature. That proposed instruction read as follows:
As used in the information filed in this case and in these instructions, the words `forge' and `forged' include the false making or counterfeiting of the signature of a party, real or fictitious.
[1] The instructions as given, essentially paraphrasing the forgery statute, read as follows:
Every person who, with intent to defraud, signs the name of another person, knowing that he has no authority so to do, or falsely makes, alters, forges or counterfeits a check is guilty of forgery.

*841 The words `forge' and `forged' include the false making of a genuine instrument, in whole or in part, and the false making or counterfeiting of the signature of a party, real or fictitious.
We do not believe appellant's contentions are well taken. In the first place, there was evidence before the jury which could have formed the basis of a finding that Haislip in fact forged the signature. The jury had the two checks involved before them as well as other checks, which beyond question were written and signed by Haislip. The fact that the expert witness was unable to testify with any assurance that Haislip did or did not sign the checks in question is no reason that the jury could not independently make their own comparison. See Mitchell v. Mitchell, 24 Wn.2d 701, 166 P.2d 938 (1946); Annot., 80 A.L.R.2d 272 (1961).
[2, 3] Even if we were to assume that there was no basis for a finding that Haislip forged the signature, it would not follow that he could not be convicted under RCW 9.44.020 and the instructions as given. The provisions of RCW 9.44.020 applicable to the instant case, may be excerpted as follows:
Every person who, with intent to defraud, shall forge ... any request for the payment of money . .. shall be guilty of forgery in the first degree . ..
We have noted that the definition of forge as used in that statute "is to be determined by reference to accepted and well understood definitions of the term." State v. Lutes, 38 Wn.2d 475, 478, 230 P.2d 786, 788 (1951). Although the term is not precisely defined by RCW 9.44.010, the term "forge" includes at least the offenses mentioned therein. The excerpted portion of that statute which is pertinent to this case reads:
The words `forge,' `forgery,' `forged,' and `forging,' shall include false making, `counterfeiting' and the alteration, erasure or obliteration of a genuine instrument in whole or in part, the false making or counterfeiting of the signature of a party or witness, real or fictitious .. .
Appellant contends that the first portion of the statute regarding *842 the false making of a genuine instrument in part could not refer to the checks here involved because they are spurious documents and not valid or "genuine" in themselves. If his contention were accepted, the statute would make no sense. It is a logical impossibility for one to falsely make or counterfeit an instrument which is also valid or "genuine." If "genuine instrument" is to mean anything, it must refer to the myriad of writings enumerated in RCW 9.44.020 which affect legal rights. By this we mean any instrument which purports on the face of it to be good and valid for the purpose for which it was created. Thus one may falsely make out in whole or in part a blank check. This act of course is not a felony unless it meets the additional element of intent to defraud as set forth in RCW 9.44.020. There is also one further requirement. The recognized rule is that in order to constitute a forgery a writing or instrument must be such that if genuine it would have efficacy as affecting some legal right. State v. Morse, 38 Wn.2d 927, 234 P.2d 478 (1951). In Morse this court was faced with the question of whether the signature "Hillyard Motors" was a forgery and, if a forgery, was sufficient to create apparent legal efficacy without an individual signature. We held that evidence showing that the signature "Hillyard Motors" was not made by anyone with authority to sign checks at Hillyard Motors was enough to establish that the signature was forged by someone. In the instant case there was ample testimony on the basis of which the jury could have found that the signature was a forgery, i.e., that it was not signed by Delbert Freeman. There can be no question that the check, if valid, would have efficacy in affecting legal rights. On its face it has everything required in order to qualify as a "written instrument" within the meaning of the forgery statute.
[4] There is no requirement either in common law or by statute that the accused personally write each and every item which is required in order to make the instrument apparently valid on its face. In State v. Taes, 5 Wn.2d 51, 104 P.2d 751 (1940), we held that an instrument purporting to be a bank check but not containing the name of any *843 bank would not, if genuine, have such efficacy as to furnish the basis for a charge of forgery. Although the name of the bank is required, there is obviously no requirement that the state prove that the name of the bank was written in the accused's handwriting. We do not believe that there was error on this issue regardless of how the jury instruction is interpreted.
Appellant also contends that adverse pretrial publicity about a pending robbery charge and to the effect that the state would demand writing exemplars were prejudicial. The publicity is allegedly in violation of the Bench-Bar-Press Guidelines. The following was the brief news item read several times over a local radio station on the Thursday and Friday preceding the Monday trial:
Scheduled to begin Monday morning before a jury is the case of the State versus Jesse Eugene Haislip. Haislip was arrested for allegedly robbing Robert Dennis of $500.00 in March of 1967  and charged on two counts of first degree forgery of the name of Delbert Freeman on a pair of $20.00 checks which proved to be worthless last May. Deputy Prosecuting Attorney James P. Thompson plans to move to require the defendant to provide a complete handwriting sample before the case begins next Monday morning. Attorney Byron Swedberg represents Haislip.
On the day the trial convened a story appeared on page 8 of the Bellingham Herald which read in part:
A Superior Court jury began listening to the forgery and robbery case against Jesse Haislip, 45, Monday in Judge Bert Kale's courtroom.
The jury was selected shortly before lunch.
Haislip is accused of robbing by force $500 from Robert Dennis and forging two $20 checks with the name Delbert Freeman here last May. He has pleaded innocent to both charges.
[5] Appellant contends that the information that Haislip was being tried for both robbery and forgery was incorrect and prejudicial. There is no question but that parts of the newspaper article were incorrect. However, that does not mean that it was prejudicial. Haislip was in fact arrested for robbery. This charge was pending and a trial *844 date had been set. It is no violation of the Guidelines to report the fact of an arrest for robbery. The robbery count had been severed before trial, a fact which was overlooked by the newspaper. But, there was no prejudice which can be shown from this relatively obscure news story which, at most, misreported the date of a trial which had been set.
[6] The disclosure that the state planned to move for handwriting exemplars raises different questions. Statements concerning anticipated evidence should generally be avoided whenever possible. However, we hardly think the one sentence in the very brief news item was enough to create the atmosphere and notoriety which may taint a case.
There is a further facet to appellant's argument. He contends that the further action of the state in mentioning the lack of exemplars made the earlier news item prejudicial. We disagree.
The state subsequently moved, in the absence of the jury, for handwriting exemplars. The deputy prosecutor conditioned his motion with the comment "it's never been sanctioned by the court. I don't believe it's been tested. If it has I haven't found it."[1] The trial court denied the motion. The only comment heard by the jury was a comment later in the trial by the expert witness that he lacked samples of handwriting upon which to base an opinion as to the signature. We do not believe that statement was prejudicial.
Appellant also claims that the court's instruction on circumstantial evidence is prejudicial error. The portion of the instruction which he objects to reads:
[W]here circumstantial evidence is relied upon for a conviction, all of the circumstances which are proved must be consistent with each other and consistent with the hypothesis that the accused is guilty, and at the same *845 time inconsistent with every other reasonable conclusion except that of the guilt of the accused.
The instruction proposed by appellant was an almost exact quotation from State v. Gillingham, 33 Wn.2d 847, 207 P.2d 737 (1949):
It is a well-established rule of law that, in order to sustain a conviction on circumstantial evidence, the circumstances proved by the state must not only be consistent with each other and consistent with the hypothesis that the accused is guilty, but also must be inconsistent with any reasonable hypothesis or theory which would establish, or tend to establish, his innocence.
[7] The instruction requested by Haislip was probably better than the instruction actually given. However, we must look to the effect of the instructions as a whole before we decide that the failure to give any one instruction was prejudicial error. The essence of appellant's objection is that instruction No. 7 did not tell the jury that they could not base a conviction on circumstantial evidence unless every reasonable hypothesis of innocence was excluded. However, an earlier portion of the same instruction, omitted from the quoted portion in appellant's brief, clearly states that circumstantial evidence must be "of such character as to exclude every reasonable hypothesis other than that of the guilt of defendant ..." We can find no prejudicial error in this instruction.
[8] Haislip requested an instruction specifically on the subject of testimony by expert witnesses. The jury was instructed generally that they were the sole and exclusive judges of the testimony and credibility of the witnesses and of the weight to be attached to each. We have previously noted in a civil case that "[i]t perhaps would have been wise to have specifically called the jury's attention to the fact that this instruction also applied to expert witnesses." Gerberg v. Crosby, 52 Wn.2d 792, 329 P.2d 184 (1958). This admonition would apply to a criminal trial. However, the error, if any there was, in failing to give the proffered instruction was harmless. It would not have constitutional dimensions such as might require automatic reversal. The *846 expert witness was the main witness relied upon by the state; the instruction on witnesses generally clearly applied to him. The jury was constantly reminded that they and they alone were the triers of fact.
Haislip personally submitted several additional assignments of error. One in particular raises points which require some elaboration. He contends that there was no showing that the defendant had aid of counsel in the prior convictions which form the basis of the habitual criminal conviction. This was allegedly in violation of Burgett v. Texas, 389 U.S. 109, 19 L.Ed.2d 319, 88 S.Ct. 258 (1967), which suggests that prior convictions rendered in violation of due process standards cannot be used to enhance penalties. The prosecutor dismisses this claim, noting that the "record does not disclose whether or not appellant was without counsel," but that even if he did not have counsel, Gideon v. Wainwright, 372 U.S. 335, 9 L.Ed.2d 799, 83 S.Ct. 792 (1963), is not retroactive and thus counsel did not have to be provided. Although the prosecutor is wrong on both counts, it does Mr. Haislip little good. Gideon is not limited to prospective applications. See Doughty v. Maxwell, 376 U.S. 202, 11 L.Ed.2d 650, 84 S.Ct. 702 (1964); Pickelsimer v. Wainwright, 375 U.S. 2, 11 L.Ed.2d 41, 84 S.Ct. 80 (1963). However, it is equally clear that the record shows counsel was available on at least two of the prior convictions involved. Haislip was represented by counsel in the California trial for forgery which led to his conviction in 1957 and again during a trial in Arizona which led to his 1960 conviction for cashing a bogus check. These convictions adequately support the finding that Haislip was a habitual criminal, so we need not reach the questions raised by Burgett, supra.
We have considered the numerous other assignments of error and find them completely without merit. Nothing would be gained by a further discussion of these points.
The judgment is affirmed.
HUNTER, C.J., ROSELLINI, J., and LEAHY, J. Pro Tem., concur.
*847 NEILL, J. (dissenting)
I am in disagreement with the majority's premises: first, that a conviction of forgery by the making of a spurious instrument is proper where the accused is shown to have made out only a part of an instrument that is now complete, regardless of a lack of evidence that an efficacious instrument left the defendant's hands; and, second, that there was sufficient evidence on which the jury could conclude beyond a reasonable doubt that defendant forged the signatures to the checks.
To constitute a forgery, there must be a making of a writing or instrument that, if genuine, would operate to affect some legal right. State v. Morse, 38 Wn.2d 927, 234 P.2d 478 (1951); State v. Taes, 5 Wn.2d 51, 104 P.2d 751 (1940); State v. Kuluris, 132 Wash. 149, 231 P. 782 (1925). However, the accused need not have forged the entire instrument; it is sufficient under RCW 9.44.010 that his acts constitute a false making of a genuine instrument in whole or in part or the false making of a signature.
An accused has not committed a forgery by the false making of a genuine instrument in whole or in part unless his act has the effect of creating a seemingly "genuine instrument" or alters, erases or obliterates a genuine instrument. We have held that such an instrument is not created when a purported bank check does not contain the name of a bank. State v. Taes, supra. A blank check does not become a seemingly genuine instrument unless, among other things, it is signed. Here, it is quite doubtful that there is any evidence that the check blanks in question contained a signature when they left the defendant's control. I will discuss this absence later. My present concern is with the majority's assertion that such evidence is unnecessary. The majority rationale would hold an accused guilty of forgery whenever he is shown to have forged some part of an instrument, irrespective of the fact that his act did not result in a seemingly genuine instrument, so long as a sufficiently complete instrument is ultimately in evidence. Thus, if an accused once begins a forgery, and the incomplete instrument is then taken, completed and negotiated by a stranger, under the majority's view the accused would *848 still be guilty of forgery. As I perceive the rule, an accused in some circumstances may be guilty of an attempt, but he is not guilty of the completed crime of forgery.
In a charge of forgery under RCW 9.44.020, the state must prove either that the accused perpetrated a "false making ... of a genuine instrument in whole or in part" or the "false making ... of the signature." (Other acts of forgery defined in RCW 9.44.010 are not pertinent here.) As to the first method of forgery, the state must prove that the accused committed an act or acts which, when alone or when combined with prior or concerted acts of others, results in a seemingly genuine instrument. The proof required under the second method of forgery relates solely to the signature.
The jury had before it three genuine checks written by the defendant, the two bogus checks, and two samples of the writing of the complaining witness whose name had been forged on the bogus checks. The state's own expert witness gave "negative testimony" about the sufficiency of this evidence. That is, he testified that the evidence presented was not sufficient as a basis for concluding that the defendant had forged the signatures on the bogus checks. The majority states that this uncountered negative testimony is of no significance and that the jury, in its own deliberations, could reach a conclusion which the expert stated was not reachable. I disagree.
In order to correctly perceive the present issue, it is important to narrow the scope of attention. This case does not involve the question of whether a trier of fact may, in the complete absence of expert testimony, make an independent comparison between the disputed writing and admittedly genuine specimens of the defendant's handwriting which are in evidence. See Mitchell v. Mitchell, 24 Wn.2d 701, 166 P.2d 938 (1946); State v. Simmons, 52 Wash. 132, 100 P. 269 (1909); but cf. Clark v. State, 114 So.2d 197, 80 A.L.R.2d 261, 268 (Fla. App. 1959). It may well be that, where especially technical subject matter is concerned, the burden of producing evidence should encompass a requirement of affirmative expert testimony; but that question is *849 not before us here. Rather, the matter before us is the effect of uncountered negative expert testimony pertaining to analysis of technical handwriting characteristics, not to comparison of same-name signatures.
The purpose and justification for expert testimony rests in the obscurity of the subject matter involved, because of which the jury requires the assistance of someone with special knowledge. Cf., McCormick, Handbook of the Law of Evidence § 13 (1954). It seems to me that expert testimony is not only effective to draw conclusions from obscure or complex facts in evidence, but also to demonstrate that reasonable conclusions cannot be drawn from that evidence. In the latter instance, the expert testimony may be termed "negative." In cases where such testimony goes uncountered, the efficacy of the evidence to make out a prima facie case on the point in issue is nullified. Thus, where expert testimony is appropriate as to an ultimate fact, uncountered negative expert testimony constitutes a failure of the evidence to support the party bearing the burden of proof on that issue.
It is not denied that handwriting analysis and comparison is an appropriate subject of expert testimony. In the present case, that testimony was entirely negative as to the possibility of concluding from the evidence presented that defendant had forged the signatures on the bogus checks. As such evidence is essential to a conviction of the offense charged, the state has failed to meet its burden of proof.
I would reverse.
NOTES
[*]  Reported in 467 P.2d 284.
[1]  The deputy prosecutor's search for precedent was not exhaustive. See Gilbert v. California, 388 U.S. 263, 18 L.Ed.2d 1178, 87 S.Ct. 1951 (1967); Lewis v. United States, 382 F.2d 817 (D.C. Cir.1967); but see United States v. Green, 282 F. Supp. 373 (S.D. Ind. 1968). Cf. State v. Craig, 67 Wn.2d 77, 406 P.2d 599 (1965); State v. McLaughlin, 74 Wn.2d 301, 444 P.2d 699 (1968).


620 F.2d 289
Negronv.Hatrak
79-2343
UNITED STATES COURT OF APPEALS Third Circuit
4/7/80

1
D.N.J.

AFFIRMED


602 S.W.2d 330 (1980)
Weldon CALLAWAY et ux., Appellants
v.
CITY OF ODESSA, Appellee.
No. 6913.
Court of Civil Appeals of Texas, El Paso.
June 11, 1980.
Rehearing Denied July 9, 1980.
*331 Law Offices of Bill Alexander, Cynthia Clack, Odessa, for appellants.
Shafer, Gilliland, Davis, McCollum & Ashley, Inc., James M. O'Leary, Odessa, for appellee.

OPINION
WARD, Justice.
The Plaintiffs sued the City of Odessa for damages resulting from the backup and overflow of sewage into their home. Trial was to a jury, which answered all the jury issues submitted in favor of the Plaintiffs. The Court then granted the City's motion for judgment non obstante veredicto under Rule 301, Tex.R.Civ.P., and a take nothing judgment was entered. The grounds in the motion, and the issues on appeal, present contentions of no evidence to support the jury findings, the defense of governmental immunity, the effect of the Texas Tort Claims Act, the City's defense against the alleged creation of a nuisance, and the two-year statute of limitations. We affirm.
*332 The Plaintiffs, Weldon and Billie Callaway, purchased their home in Odessa in 1967. The City sewer line involved was in the alley behind the home, and had been maintained by the City as a part of its sewer system since that time. The Plaintiffs first encountered problems with the backup of the sewer about three or four years after moving into their home. They continued to have intermittent problems thereafter, most of which were of a minor nature, and repeatedly complained to the City. On June 26, 1978, they suffered a backup which caused damage to one of their bathrooms, and the City was again notified. Two days later, on June 28, 1979, a major backup occurred during the night, and the entire home was flooded with two or three inches of sewage. This resulted in considerable property damage to the home, and annoyance and discomfort to the Plaintiffs. Plaintiffs then brought suit against the City alleging, among other things, that the City was negligent in improperly maintaining the City's sewer line, that the City had created a nuisance which constituted a taking of their property, and they prayed for their damages. The City's answer alleged, among other things, that the City was immune to the suit as the operation of the sewer system was a governmental function, that it was still protected by the Texas Tort Claims Act, and that the claim was barred by the two-year statute of limitations.
By their answers to the issues submitting the Plaintiffs' theory of negligence, the jury, among other things, determined that (1) the City improperly maintained the City sewer line on or about June 28, 1978; (3) that such improper maintenance was negligence; and (4) that such negligence was a proximate cause of the Plaintiffs' damages. By their answers to the issues on the Plaintiffs' theory of nuisance, the jury determined (5) that the City was in exclusive control of the City's sewer line in question on or about June 28, 1978; (6) that the City allowed the City's sewer line to get out of repair on or about June 28, 1978; (7) that the City allowed the City sewer line in question to become a nuisance by the manner in which it was used; (9) that the City failed to abate the nuisance; (10) that the Plaintiffs suffered damages as a proximate [cause] of the nuisance; and (11) that August 22, 1976, was the beginning date on which the condition of the City sewer line began constituting a nuisance. By its answer to the damage issue 12, the jury determined that there was no permanent damage to the Plaintiffs' property; that the repair and replacement costs to various items was $5,107.44; and that the Plaintiffs suffered damages for annoyance and discomfort in the amount of $10,000.00.
In its motion for judgment non obstante veredicto, the City attacked the legal sufficiency of the evidence supporting the jury findings to special issues 1 through 11. Since the trial Court granted the motion, the Plaintiffs' first point is that the Court was in error, as each of the findings to those issues was supported by legally sufficient evidence. The City concedes the point, with the exception that it is not to affect its defenses raised by its subsequent reply points. For all practical purposes, this means that the City contests the finding that the sewer line ever became a nuisance. As later discussed, the City asserts that the evidence in the case was legally insufficient to justify any finding of nuisance under our present law. Since we will agree with that nuisance argument, we sustain the Plaintiffs' first point as to the jury findings, except for special issue number 7 and the subsequent ones insofar as they refer to the finding of nuisance. We also sustain the Plaintiffs' fourth point, and hold that the Plaintiffs' alleged cause of action on nuisance was not barred by the two-year statute of limitations. The jury determined by its uncontested findings that the nuisance began on August 22, 1976. The action complained of was in the nature of one of a continuing series of events, and it occurred within two years of the date the suit was filed, and damages were limited to that occurrence.
The Plaintiffs' evidence was to the effect that there was an obstruction of some sort in the City sewer which lay in the alley at a *333 point some 93 feet down the alley; that a broken piece of the sewer pipe caused the obstruction; and that the City's maintenance or failure to maintain the defect had existed long enough for it to be a nuisance. This brings us to the real problem facing the Plaintiffs.
A municipality, such as Odessa, is immune from liability for negligence in the performance of governmental functions, except as may be otherwise provided by the Tort Claims Act, Art. 6252-19, Tex.Rev.Civ. Stat.Ann. It is also well settled that the maintenance and operation of a sanitary sewer system by a city is a governmental function. City of Texarkana v. Taylor, 490 S.W.2d 191 (Tex.Civ.App. Texarkana 1972, writ ref'd n. r. e.). Further, a municipality, although otherwise immune from liability, loses that immunity if the danger which caused the harm becomes a nuisance. City of Houston v. George, 479 S.W.2d 257 (Tex. 1972).
Our Plaintiffs recognize these principles, but insist that they can recover under the nuisance theory. But, here again, they are barred by the established policy in this State. One approach of the courts has been to consider a private nuisance as merely meaning a term characterizing the damages done or the interest invaded, and that negligence is the real basis for the action and liability. This reasoning applies to the facts before us.
* * * Texas courts are committed to a legal doctrine that a municipality in Texas is immune from liability for negligence in the performance of a governmental function and that operation of a sanitary sewer system is performance of a governmental function. When it is considered that private nuisance is merely a term characterizing the damage done, it is apparent that the judgments here under review were of necessity rendered on the theory that damage was caused and inflicted by the negligence of the City. Nuisance is the term for the kind of damage inflicted; negligence causation is the gravamen of the actions brought by the appellees and the basis of liability. Fundamentally, the suits seek to compel the City to respond in damages for its negligence. The conclusion cannot be escaped that negligence, not some other fault, is the causative reason alleged and proved for the respective appellees' damage and the suits must be recognized for what they are, negligence actions, and treated as such. The City's governmental immunity to such actions shields it from liability. * * *
The above is from the leading case of City of Texarkana v. Taylor, supra, at 193. This was followed in Rowe v. City of Temple, 510 S.W.2d 173 (Tex.Civ.App. Beaumont 1974, no writ).
The other approach has been made by this Court, and that is to hold that, before a city can be liable for creating or maintaining a nuisance, there must be something inherently dangerous in the very thing or condition claimed to be the nuisance, and must be beyond that arising from negligence in its use or maintenance. One of those cases arose where the plaintiffs brought suit against the city for damages resulting when their home was damaged from sewage backing up from the municipal sewer system. Steele v. City of El Paso, 417 S.W.2d 923 (Tex.Civ.App. El Paso 1967, writ ref'd n. r. e.). See also: Strickland v. City of Odessa, 268 S.W.2d 722 (Tex. Civ.App.  El Paso 1954, no writ); Parson v. Texas City, 259 S.W.2d 333 (Tex.Civ.App.  Fort Worth 1953, writ ref'd).
The Plaintiffs also try to argue around the governmental immunity defense by pointing to certain evidence that indicated some rain water entered the system and hence the system was used in a proprietary function of the government. We disagree, as the sanitary sewer system and the storm sewer of the City were separate and distinct, although on occasions some rain water did get into the sewer system through holes in the manhole covers, and although the City tried to prevent that as much as possible. The Plaintiffs' Points of Error 2 and 5 are overruled.
*334 Finally, by Point of Error 3, the Plaintiffs attempt to avoid a part of the immunity defense by resorting to the Texas Tort Claims Act. The Act provides for waiver in three general areas: (1) use of publicly owned vehicles; (2) premises defects; and (3) injuries arising out of the condition or use of tangible property. Lowe v. Texas Tech University, 540 S.W.2d 297 (Tex.1976). Since the Plaintiffs rely on the waiver of injuries arising out of the condition or use of tangible property, they admit that on this theory property damages cannot be recovered. DeAnda v. County of El Paso, 581 S.W.2d 795 (Tex.Civ.App. El Paso 1979, no writ). Thus, the award by the jury of $5,107.44 for items of repair and replacement, being damages to property, cannot stand. However, damages for personal injury are recoverable, if the claim arises from the use of other tangible property. Steele v. City of Houston, 577 S.W.2d 372 (Tex.Civ.App. Houston [14th Dist.] 1979, writ granted); Nations, Statutory Damages Recovery: Texas Tort Claims Act, 18 S.Tex.L.J. 297 (1976). The issue is thus narrowed to the contention of the Plaintiffs that they are entitled to recover the $10,000.00 award the jury made for the following element of damage:
Annoyance and discomfort suffered by the Plaintiffs for the impairment of the use and enjoyment of their property.
Mrs. Callaway testified that she became very nervous as a result of the sewer backups, and was so upset that she had to move from the house. The Plaintiffs rely on Mokry v. University of Texas Health Science Center at Dallas, 529 S.W.2d 802 (Tex. Civ.App.  Dallas 1975, writ ref'd n. r. e.), where the Court held that the personal injury requirement of the Act was met where the plaintiff alleged mental suffering in the absence of physical harm because he suffered mental anguish, headaches and nervousness when his eyeball was lost after it had been surgically removed and was in the process of being tested for possible cancer. That case relied upon extreme examples where there was a severe mental injury or a physical injury caused by an emotional trauma. We hold that the annoyance and discomfort suffered by the Plaintiffs for the impairment of the use and enjoyment of their property in this case involves property damages, and is not covered by the Texas Tort Claims Act. See: Vestal v. Gulf Oil Corp., 235 S.W.2d 440 (Tex.1951); Lacy Feed Company v. Parrish, 517 S.W.2d 845 (Tex.Civ.App. Waco 1974, writ ref'd n. r. e.); Neuhoff Brothers Packers, Inc. v. McCauley, 411 S.W.2d 944 (Tex.Civ.App.  Waco 1967, no writ). At best, the jury award was for mental anguish alone under circumstances where those damages cannot be recovered. Duncan v. Ford, 23 Tex.Sup. Ct.J. 34 (May 31, 1980) at 379. Plaintiffs' third point is overruled.
The judgment of the trial Court is affirmed.


                                Fourth Court of Appeals
                                       San Antonio, Texas
                                  MEMORANDUM OPINION
                                          No. 04-13-00510-CR

                                             Juan GARCIA,
                                                Appellant

                                                  v.
                                            The State of /s
                                         The STATE of Texas,
                                               Appellee

                      From the 227th Judicial District Court, Bexar County, Texas
                                    Trial Court No. 2012CR1531
                           Honorable Philip A. Kazen, Jr., Judge Presiding

Opinion by:       Sandee Bryan Marion, Justice

Sitting:          Sandee Bryan Marion, Justice
                  Marialyn Barnard, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: September 10, 2014

AFFIRMED; MOTION TO WITHDRAW GRANTED

           Following the denial of his motion to suppress, appellant pled no contest, pursuant to a plea

bargain, to possession of a firearm (habitual). The trial court assessed punishment at twenty-five

years’ confinement. Appellant’s court-appointed appellate attorney filed a brief containing a

professional evaluation of the record and demonstrating that there are no arguable grounds to be

advanced. Counsel concludes the appeal is without merit. The brief meets the requirements of

Anders v. California, 386 U.S. 738 (1967). Appellant was informed of his right to review the

record and of his right to file a pro se brief. Appellant filed a pro se brief.
                                                                               04-13-00510-CR

         When an Anders brief and a subsequent pro se brief are filed, we may either (1) determine

that the appeal is wholly frivolous and issue an opinion explaining that we have reviewed the

record and find no reversible error, or (2) determine that arguable grounds for appeal exist and

remand the cause to the trial court so that new counsel may be appointed to brief the issues. Garner

v. State, 300 S.W.3d 763, 766 (Tex. Crim. App. 2009); Bledsoe v. State, 178 S.W.3d 824, 826-27

(Tex. Crim. App. 2005). Here, we have reviewed the record, counsel’s brief, appellant’s pro se

brief, and the case law on which appellant relies for his arguments. We conclude there is no

reversible error and this appeal is wholly frivolous and without merit. Therefore, we affirm the

trial court’s judgment and grant appellate counsel’s motion to withdraw. 1

                                                            Sandee Bryan Marion, Justice

Do not publish

1
  No substitute counsel will be appointed. See In re Schulman, 252 S.W.3d 403, 408 n.22 (Tex. Crim. App. 2008).
Should appellant wish to seek further review of this case by the Texas Court of Criminal Appeals, appellant must
either retain an attorney to file a petition for discretionary review or file a pro se petition for discretionary review.
Any petition for discretionary review must be filed within thirty days from the date of either this opinion or the last
timely motion for rehearing that is overruled by this court. See TEX. R. APP. P. 68.2. Any petition for discretionary
review must comply with the requirements of Texas Rules of Appellate Procedure 68.4.

                                                          -2-


213 S.E.2d 434 (1975)
25 N.C. App. 343
STATE of North Carolina
v.
Gary C. LINDSEY and Mark Wells.
No. 748SC1058.
Court of Appeals of North Carolina.
April 16, 1975.
Certiorari Denied and Appeal Dismissed June 6, 1975.
*437 Atty. Gen. Rufus L. Edmisten by Associate Atty. James Wallace, Jr., Raleigh, for the State.
George F. Taylor, Goldsboro, for Gary C. Lindsey and Roland C. Braswell, Goldsboro, for Mark Wells, defendants.
Certiorari Denied and Appeal Dismissed by Supreme Court June 6, 1975.
CLARK, Judge.
The defendants objected to the consolidation for trial of the various charges against both of them. The trial court may, in its discretion, consolidate for trial multiple charges against a defendant, or multiple defendants, where the charges are of the same class and so connected in time or place that evidence at the trial of one of the indictments will be competent and admissible at the trial of the others. G.S. § 15-152; State v. White, 256 N.C. 244, 123 S.E.2d 483 (1962); State v. Garcia, 16 N.C.App. 344, 192 S.E.2d 2 (1972). Here the State's evidence tended to show that the defendants were the operators of a filling station, which they used in a conspiracy with the witness Potter and others as the base of operations for the "fencing" of stolen goods. The charges were so connected and the evidence so interrelated that the trial court was fully justified in ordering the consolidation.
The defendants made motions for mistrial and continuance when Assistance District Attorney Jacobs, in the presence of the jury, made the following statement: "[W]e had other charges that arose. For instance accessory before and accessory after the fact . . .." The statement was made in response to the argument of defense counsel, also made in the presence of jurors, in opposition to the State's motion for consolidation. The reference was to other charges against the defendants of accessory before the fact and accessory after the fact to the three break-in charges referred to in the conspiracy indictments, and it was made to inform the court that the State was not seeking to include the accessory charges in the motion for consolidation. Several minutes before this statement was made District Attorney Parker announced in open court and in the presence of jurors that "[t]he accessory, we are not pressing; that is before and after each breaking and entering." Defendants then made no objection or request for instructions. Under the circumstances the State's attorney did not overstep the bounds of propriety and fairness which should characterize the conduct of an officer of the court. The conduct of the trial rests in the sound discretion of the trial court. Shute v. Fisher, 270 N.C. 247, 154 S.E.2d 75 (1967); State v. Dove, 222 N.C. 162, 22 S.E.2d 231 (1942). The ruling of the trial court in denying the motion for mistrial was sound, and we find no abuse of discretion.
The State was allowed, over defendants' objection, to introduce evidence of conversations which took place between the other conspirators and the defendants. These conversations occurred at the defendants' gas station on a number of separate occasions. The defendants objected to the admission into evidence of those parts of the conversations which related to plans to steal and receive televisions, guns and other stolen goods. They assign error on the ground that the defendants were not charged with receiving or conspiring to receive such stolen goods, but were charged *438 only with receiving stolen tires and conspiring to break in, steal, and receive stolen tires. The record reveals that their talks were not separated according to the kind of goods, but were general in scope and often a single conversation included references not only to tires but to many other kinds of goods. We find no error in the admission of such testimony nor in the testimony of the witnesses that they at various times sold goods other than tires to the defendants. It is the general rule that when evidence of a prima facie case of conspiracy has been introduced, the acts and declarations of each party to it in furtherance of its objectives are admissible against the other conspirators. State v. Conrad, 275 N.C. 342, 168 S.E.2d 39 (1969). Furthermore, the prima facie case can, in the discretion of the trial court, be established subsequently to the introduction of the declarations. State v. Thomas, 244 N.C. 212, 93 S.E.2d 63 (1956). In the present case there was an abundance of evidence, even some without objection, establishing a prima facie case of conspiracy. Considerable latitude is allowed in the admission of evidence offered to establish the gravamen of a conspiracy charge. State v. Gibson, 233 N.C. 691, 65 S.E.2d 508 (1951).
Evidence of declarations and acts relative to receiving stolen goods outside the conspiracy were admissible under a well-established exception to the general rule that evidence of distinct substantive offenses is inadmissible to prove either another crime or to show character. Such evidence is admissible where it is probative of guilty knowledge, intent, plan or design and other things that are logically relevant. State v. Summerlin, 232 N.C. 333, 60 S.E.2d 322 (1950); 1 Stansbury, N.C. Evidence, §§ 92, 159 (Brandis rev. 1973).
Examination of the many evidentiary objections and exceptions reveals that the questioned evidence was relevant and admissible to prove defendants' design or modus operandi in the furtherance of the objectives of the conspiracies charged or the other charges of receiving stolen goods and to show intent and guilty knowledge.
Several of the witnesses for the State were testifying pursuant to a plea bargaining arrangement. On cross-examination, counsel for the defendants sought to raise questions relating to the terms of these plea bargaining agreements, each witness's knowledge of the maximum sentence they could have received had they not plea bargained, and the details of their prison records. It is recognized that it is proper to test a witness as to bias concerning a promise of pardon as the result of his testimony for the State. State v. Chance, 279 N.C. 643, 185 S.E.2d 227 (1971); State v. Roberson, 215 N.C. 784, 3 S.E.2d 277 (1939). However, it is as equally well established that the refusal to permit questions which would invoke merely repetitious or cumulative evidence is not error. State v. Gray, 268 N.C. 69, 150 S.E.2d 1 (1966).
Counsel for the defendants sought to elicit answers to these questions from three separate witnesses testifying for the State. The first witness, John Robert Potter, stated that he was testifying for only one reason and that was that the State would not prosecute him for the crimes he had committed. There were an extraordinary number of pages in the record devoted to bringing out the innumerable crimes Potter had committed. He in fact stated that he did not ". . . think it would be over a hundred." He further admitted that he had previously served a number of years in jail on numerous theft charges and went into the sentences he had received for each.
The second witness, Arnold Gaitan DuBois, testified that he had plea bargained a twenty-year sentence for the crimes he had committed specifying thirty-eight or nine cases of "breakings, enterings, larcenies, safecrackings, armed robberies, and receiving." He understood that he could have gotten as many as seven hundred years if he had not plea bargained.
The third witness, Donald Gene Langston, testified that he had been in prison *439 four or five times for forgery, uttering a forged document, taking a stolen car across state lines, worthless checks, and forcible trespass. He even admitted that if it would be advantageous for him to tell a lie, he would. It should also be noted that a witness, David Earl Vinson, also testified for the State to the effect that he had plea bargained a seven-year sentence for crimes he had committed as part of a theft ring operating in Wayne County. He had already served eight years in prison.
In view of the overwhelming amount of evidence admitted regarding each witness's plea bargain and criminal proclivities, we do not feel that the defendants were prejudiced by the exclusion of other evidence which was generally cumulative in nature. While we recognize the substantial right of counsel to sift the witness on cross-examination with regard to questions of bias, we believe that in the circumstances of this case, the trial court had discretionary authority to keep the cross-examination within proper bounds and to exclude repetitious evidence. His exercise of that discretion was not abusive.
At one point in the trial while John Potter was testifying, defendant Lindsey's attorney requested that witnesses Vinson and DuBois be sequestered for the remainder of the trial. It is contended that the denial of this request was error. A motion to sequester is directed to the discretion of the trial court and its ruling thereon is not reviewable on appeal except in cases of manifest abuse. State v. Felton, 283 N.C. 368, 196 S.E.2d 239 (1973); State v. Jones, 21 N.C.App. 666, 205 S.E.2d 147 (1974). In this case, the request was made after the State had begun to present its case and the defendant failed to explain why he wanted the witnesses sequestered. We find no merit in this assignment of error.
The jury, with an alternate, was empaneled on Monday, 21 January 1974. On Tuesday morning, Juror No. 6, was called to the witness stand by the court, in the absence of the other jurors, and testified that last night he had received a telephone call from his brother, Ray Malpass in Kinston, who told him that the defendant Wells was a friend of his and if there was anything the juror could do to help, he would appreciate it; that about an hour later his brother called back, apologized for calling, and said that defendant Wells had approached him at work and asked him to call, which he did while said defendant was there with him. He did not tell anything else about the call.
The juror was excused. The other jurors were called to the courtroom, told that Juror No. 6 was discharged, and the alternate juror was told to take the No. 6 seat. Defendants objected to the removal of Juror No. 6, to his replacement by the alternate, and moved for a mistrial and continuance. The objections were overruled and the motions denied, and we find no abuse of discretion and no error in this ruling.
At trial, the State offered Ray Malpass. He testified in substance that Wells had approached him to see if he would call his brother and put in a good word for him. Ray said he would, so he called his brother with defendant Wells listening and asked him to help out Wells.
All pertinent parts of Ray Malpass's testimony were objected to and at the end of his testimony, defendant Lindsey's attorney moved for a mistrial on the grounds that this evidence was prejudicial to his client.
On appeal, the defendant particularly relies upon the case of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), wherein it was held that the confession of a nontestifying codefendant in a joint trial which implicated the other defendant in the commission of a crime was inadmissible as against that defendant under the Confrontation Clause of the Sixth Amendment. While the facts in this case do not necessarily warrant a finding that Wells' activities amounted to a "confession," in any event, we believe that *440 the evidence was admissible in that at no place in the questioned testimony was defendant Lindsey implicated in any manner. Furthermore, cautioning instructions that the jury was not to consider this evidence as against defendant Lindsey were given by the trial court both during the examination of Malpass and in the charge to the jury. In State v. Fox, 274 N.C. 277, 291, 163 S.E.2d 492, 502 (1968), the Court said, ". . . in joint trials of defendants it is necessary to exclude extrajudicial confessions unless all portions which implicate defendants other than the declarant can be deleted without prejudice either to the State or the declarant."
The activity of defendant Wells in attempting to embrace a juror through Ray Malpass was obviously relevant to show his consciousness of guilt or his unwillingness to rely on the soundness of his case. See State v. Case, 93 N.C. 545 (1885). See also Commonwealth v. White, 447 Pa. 331, 290 A.2d 246 (1972) and Gassenheimer v. United States, 26 App.D.C. 432 (1906).
Since defendant Lindsey was not implicated, we believe that the evidence of these activities was admissible under the language of State v. Fox, supra, and that Bruton v. United States, supra, is not applicable in any event because the attempted embracery by Wells was not a "confession" in the technical sense of the word.
The record of the case on appeal consists of 480 pages, with 428 exceptions, grouped into 12 assignments of error. We have traversed the legalistic maze created by experienced defense counsel in continuously and vigorously opposing the evidence offered in abundance by the State; we have sifted and treated these assignments of error which are sufficiently meritorious to justify comment; and we find that the trial judge throughout the long week of trial ruled patiently on all of the many and varied objections and motions, and that he conscientiously sought to give and did give to the defendants a fair trial free from prejudicial error.
No error.
PARKER and HEDRICK, JJ., concur.


122 F.3d 892
10 NDLR P 325, 11 Fla. L. Weekly Fed. C 429
Russell KAUFMAN, Plaintiff-Appellant,v.CHECKERS DRIVE-IN RESTAURANTS, INC., a Delaware Corporation,Defendant-Appellee.
No. 95-4265.
United States Court of Appeals,Eleventh Circuit.
Aug. 29, 1997.

Norman E. Ganz, Ft. Lauderdale, FL, Arnold R. Ginsberg, Miami, FL, for Plaintiff-Appellant.
Claude H. Tison, Jr., Sandra L. Fanning, McFarlane, Ausley, Ferguson & McMullen, Tampa, FL, James A. Martin, Jr., Clearwater, FL, for Defendant-Appellee.
Appeal from the United States District Court for the Southern District of Florida.
Before TJOFLAT and BLACK, Circuit Judges, and REAVLEY*, Senior Circuit Judge.
TJOFLAT, Circuit Judge:

1
Appellant Russell Kaufman brought suit against appellee Checkers Drive-In Restaurants, Inc.  ("Checkers"), asserting claims under federal and state law.  The district court, finding that the state law claims substantially predominated over the federal claims, issued an order declining supplemental jurisdiction over the pendent claims.  In this interlocutory appeal, Kaufman challenges the district court's action.  We do not consider his challenge because we lack jurisdiction to entertain his appeal.

I.

2
Kaufman was hired by Checkers at some time between February and April 1992.  After completing the company's training program, he worked at several Checkers restaurants.1  At one point, he worked under Abel Rodriguez, who allegedly subjected him to offensive language, anti-homosexual epithets, AIDS-based comments, and sexually explicit statements.  At another point, Kaufman worked under Seth Furman, a supervisor who allegedly pressured him to have sexual relations and subjected him to physical touching and sexually offensive language, at times in the presence of Kaufman's wife.  Checkers terminated Kaufman's employment on or about July 1, 1993.

3
Kaufman thereafter filed a charge of discrimination on the basis of sex and handicap with the United States Equal Employment Opportunity Commission (the "EEOC") and the Florida Commission on Human Relations.  On June 24, 1994, the EEOC issued him a right to sue letter.

4
On August 5, 1994, Kaufman instituted this action, filing an eight-count complaint in the United States District Court for the Southern District of Florida.  Three of the counts presented federal claims.  Count One alleged that Kaufman was disabled under the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213, because his supervisors at Checkers believed that he was HIV-positive or suffering from AIDS, and that Checkers violated the ADA by intentionally discriminating against him and by terminating his employment because of such belief.  Count Two alleged that Checkers, through supervisor Rodriguez, subjected him to hostile environment sexual harassment in violation of Title VII, 42 U.S.C. §§ 2000e-2000e-17.  Count Three alleged that Checkers, through supervisor Furman, subjected Kaufman to quid pro quo sexual harassment in violation of Title VII by requiring that he have sexual relations with Furman as a condition of his employment.  Each of these counts sought the recovery of lost wages, compensatory damages for "pain and suffering and all other hedonic losses as authorized by Title VII," punitive damages, and attorney's fees.

5
Five counts of the complaint presented state law claims.  Count Four alleged that Checkers' "discriminatory treatment and discharge" of Kaufman violated the Florida AIDS discrimination statute, Fla.  Stat. § 760.50.  Count Five sought recovery under the Florida Civil Rights Act, Fla.  Stat. § 760.10, for the same conduct alleged in Counts Two and Three.  Count Six sought recovery under Florida tort law for intentional infliction of emotional distress.  Count Seven alleged that Checkers negligently misrepresented that his job with the company was secure.  Count Eight alleged that Checkers had made this misrepresentation fraudulently.  Each of these state law counts sought compensatory damages;  Count Five sought punitive damages as well.

6
Checkers moved to dismiss each count of the complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim for relief.  In a written order, the district court denied the motion with the exception of Count Three, which it dismissed with leave to amend.  In addition, the court, acting sua sponte and pursuant to 28 U.S.C. § 1367(c),2 declined to exercise supplemental jurisdiction over the pendent claims because the state claims "substantially predominated" over the federal claims.  The court thus dismissed the pendent claims without prejudice.

7
Kaufman then lodged this appeal, contending that the district court abused its discretion in dismissing the pendent claims.  He argues that the district court, by requiring him to litigate these claims in state court, may have foreclosed his opportunity to obtain a federal court determination on the merits of his federal claims (Counts One through Three).  The doctrine of collateral estoppel will foreclose his federal claims, he submits, if the state court decides the pendent claims before the district court acts.

8
Shortly after the filing of this appeal, this court instructed the parties to address in their briefs the question of whether this court has jurisdiction to entertain this interlocutory appeal.  In his brief, Kaufman contends that we have jurisdiction under the collateral order doctrine articulated in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949).   Checkers, in its answer brief, makes no reference to the Cohen doctrine.  Rather, it contends that we lack jurisdiction because the order appealed from did not dispose of all of the claims in the case and thus is not a final judgment under 28 U.S.C. § 1291.3  This statement begs the question of whether the Cohen doctrine applies:  if this court has jurisdiction of this appeal, it can only be under the Cohen collateral order doctrine.  For the reasons that follow, we conclude that the doctrine does not apply in this case.

II.

9
In Cohen, the Supreme Court recognized a "small class" of non-final orders involving "claims of right" that are "too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated."  Id. at 546, 69 S.Ct. at 1225-26.   To be reviewable under Cohen, an order must (1) "conclusively determine the disputed question";  (2) "resolve an important issue completely separate from the merits of the action";  and (3) be "effectively unreviewable on appeal from a final judgment."  Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 276, 108 S.Ct. 1133, 1136-37, 99 L.Ed.2d 296 (1988) (internal quotation marks omitted) (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2458, 57 L.Ed.2d 351 (1978)).4  The burden is upon the appellant to make these showings, which in most cases should be evident from the record.

10
Kaufman contends that he has made these showings:  (1) the order conclusively determines the question in dispute--that is, the district court has made its decision not to adjudicate the state law claims with the federal claims;  (2) whether the district court should have exercised its supplemental jurisdiction is an important issue completely separate from the merits of the case;  and (3) the order will be effectively unreviewable on appeal from a final judgment.

11
We assume for the sake of discussion that the first two prongs of Cohen have been met.  We find, however, that the third prong has not been satisfied:  Kaufman has not shown that the challenged order will be effectively unreviewable on appeal from a final judgment adjudicating the merits of his federal claims.  Stated differently, Kaufman has not demonstrated that the order affects "rights that will be irretrievably lost in the absence of an immediate appeal."  Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 430-31, 105 S.Ct. 2757, 2761, 86 L.Ed.2d 340 (1985) (emphasis added).5

12
Among other things, Kaufman has not indicated whether he has filed suit on his pendent claims in state court;  if he has not done so, the collateral estoppel problem he presents does not exist.  If he has filed suit in state court, then, for issue preclusion to become a problem, Kaufman must demonstrate a likelihood that a final judgment will be entered in the state court proceeding before the district court decides his federal claims (Counts One through Three).  More specifically, he must show that the state court will not stay further proceedings in the case until the district court has reached a final judgment on the federal claims.  Finally, if the state court will not stay further proceedings, he must show that the district court will not beat the state court to the finish line.  Kaufman has made none of these showings.  In sum, he has failed to satisfy Cohen's third prong.6

13
Kaufman has not demonstrated that the district court's order is an appealable collateral order under Cohen.   The appeal is therefore dismissed for lack of jurisdiction.

14
DISMISSED.

*
 Honorable Thomas M. Reavley, Senior U.S. Circuit Judge for the Fifth Circuit, sitting by designation

1
 During his tenure with the company, Kaufman served as assistant manager and, following a promotion, as general manager of one of its restaurants

2
 Section 1367(c)(2) states:  "The district courts may decline to exercise supplemental jurisdiction ... if ... the claim substantially predominates over the claim or claims over which the district court has original jurisdiction."  28 U.S.C. § 1367(c)(2) (1994).  This subsection codifies the criteria for exercising pendent jurisdiction over state law claims provided in United Mine Workers v. Gibbs, 383 U.S. 715, 726-27, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966)

3
 Checkers also observes that the district court's dismissal of Kaufman's pendent claims was not made a partial final judgment under Fed.R.Civ.P. 54(b), from which an appeal would lie under 28 U.S.C. § 1291

4
 For a brief survey of interlocutory orders that are and are not appealable under Cohen, compare Puerto Rico Aqueduct and Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 147, 113 S.Ct. 684, 689, 121 L.Ed.2d 605 (1993) (order denying Eleventh Amendment immunity was appealable), Cohen, 337 U.S. at 546-47, 69 S.Ct. at 1226 (order denying security for costs was appealable), and Ortho Pharm.  Corp. v. Sona Distrib., 847 F.2d 1512, 1517 (11th Cir.1988) (order imposing significant sanctions on counsel was appealable), with Coopers & Lybrand, 437 U.S. at 469, 98 S.Ct. at 2458 (order passing on request for class certification was not appealable), and Howard v. Parisian, 807 F.2d 1560, 1566 (11th Cir.1987) (order denying jury trial in civil action was not appealable)

5
 For other cases in which the "effectively unreviewable" requirement was not met, see Lauro Lines S.R.L. v. Chasser, 490 U.S. 495, 496, 109 S.Ct. 1976, 1977, 104 L.Ed.2d 548 (1989) (order denying motion to dismiss on basis of forum-selection clause);  Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 376-79, 101 S.Ct. 669, 674-76, 66 L.Ed.2d 571 (1981) (order refusing to disqualify counsel);  Holt v. Ford, 862 F.2d 850, 853-54 (11th Cir.1989) (en banc) (order denying motion for appointed counsel)

6
 Moses H. Cone Mem.  Hosp. v. Mercury Constr.  Corp., 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983), presents a scenario somewhat analogous to the one before us and suggests that the Cohen doctrine might apply had Kaufman made a better showing of prejudice.  In Moses H. Cone, a district court granted a stay in a federal proceeding while the identical issue, the applicability of a contractual arbitration clause, was being litigated in a parallel proceeding in state court.  Id. at 7, 103 S.Ct. at 932.   The parties disputed whether the first prong of Cohen was satisfied--that is, whether the district court's stay order conclusively determined the disputed question.  Id. at 8-9, 103 S.Ct. at 933.   Recognizing that the state court would be the first court to decide the applicability of the arbitration clause and that its decision would bind the federal court as res judicata, the Court ruled that the district court's grant of the stay qualified as an appealable collateral order.  Id. at 12-13, 103 S.Ct. at 935
Moses H. Cone is of no help to Kaufman because, as discussed above, he has failed to show that the state court will render its determination on his state law claims before the federal court will do so on the federal claims.


                             In the

    United States Court of Appeals
                For the Seventh Circuit
                    ____________________
Nos. 18-2634 & 18-3129
UNITED STATES OF AMERICA,
                                                Plaintiff-Appellee,
                                v.

CHRISTOPHER DAVIS and MAURICE GREER,
                                  Defendants-Appellants.
                    ____________________

        Appeal from the United States District Court for the
        Southern District of Indiana, Indianapolis Division.
      No. 1:15-cr-00184-SEB-MJD — Sarah Evans Barker, Judge.
                    ____________________

   ARGUED DECEMBER 3, 2019 — DECIDED MARCH 20, 2020
               ____________________

   Before WOOD, Chief Judge, and HAMILTON and SCUDDER,
Circuit Judges.
   WOOD, Chief Judge. Christopher Davis and Maurice Greer
were charged with robbing two diﬀerent Walmarts in Indiana
over a four-month period. A jury convicted both of them, and
they now challenge the suﬃciency of the evidence underlying
their convictions. Because a rational jury could have found
each one guilty beyond a reasonable doubt, we aﬃrm.
2                                      Nos. 18-2634 & 18-3129

                               I
   According to the government’s evidence at trial, Davis
met Deidre Orkman, an assistant manager at an Indianapolis
Walmart, in early 2015 while he was shopping at the store. The
pair soon began dating. During the course of their relation-
ship, Orkman often discussed her job with Davis, and she re-
vealed to Davis what she knew about Walmart’s policies and
procedures for handling cash. Armed with this inside infor-
mation, Davis hatched a plan to rob the Indianapolis Walmart
with two of his cousins—Greer and Darryl Williams.
   Before the first robbery, Orkman met with Davis and
Greer to discuss logistics. She told Davis and Greer that a Sun-
day night or Monday morning would be the best time to rob
the store because a large amount of cash from the weekend
would remain on hand. Davis and Greer took Orkman’s ad-
vice. On the morning of Monday, June 8, 2015, the two
dropped Orkman oﬀ at the Indianapolis Walmart for her
morning shift. Amanda Greene and Jana West were working
alongside Orkman that morning at the store’s customer ser-
vice area.
    Orkman, Greene, and West testified about the following
events, most of which were also captured on security cameras.
Greer, who had been lurking behind the sunglasses rack, en-
tered the customer service area and pointed a gun at West and
Orkman. They then proceeded to the cash room, and Greene
(who was already in the cash room) and Orkman started load-
ing cash into bags. West was crying and shaking in fear. Once
the cash was in the bags, Greer used duct tape to restrain
West, Greene, and Orkman. Greer then left the Walmart with
the bags of cash and returned to the car where Davis was wait-
ing. Hours later, Davis took photographs of a large amount of
Nos. 18-2634 & 18-3129                                       3

cash spread on a table, and Davis gave Orkman $1,500 for her
role in the robbery.
    Apparently satisfied that the Indianapolis Walmart was a
good target, Davis soon decided to rob it again. He discussed
his plans with Williams (his cousin and Greer’s brother) and
Orkman. Orkman originally was “okay with it,” but later told
Davis that she wanted out. Davis informed Orkman that the
robbers would kill her if she told anyone. Davis and Williams
then moved forward with their plans for the second robbery.
    Williams testified about the details of the second robbery.
Orkman was working the overnight shift from August 27–28,
2015. Davis drove Williams to the Indianapolis Walmart and
gave him a gun to use during the robbery. Williams entered
the store and hid inside the restroom before calling Davis.
Next, Davis called Orkman to see if she was working at the
front of the store. Orkman testified that she received a phone
call from Davis, who told her to “[g]et ready,” which she un-
derstood to mean that the robbery was about to take place.
   Williams left the bathroom, found Orkman, showed her
the handgun, and demanded that Orkman take him to the
cash room. Orkman testified that she thought she would be
shot if she did not comply. Security video captured the fol-
lowing events. Just after midnight on August 28, Orkman and
Williams entered the cash room, and Williams gathered cash
from the counter. Orkman opened the safe and removed bun-
dles of cash, which Williams placed into his bags. Williams
then restrained Orkman’s hands with zip ties and bound Ork-
man’s mouth with duct tape. Williams walked out of the store
and went to a nearby apartment parking lot where Davis was
waiting.
4                                      Nos. 18-2634 & 18-3129

    Later that day, Davis paid $8,000 in cash for a white Land
Rover, which he purchased from a used car dealership. The
car dealer testified that the cash was in low-denomination
bills, principally $5 and $20. The Indianapolis Metropolitan
Police Department (“IMPD”) suspected that the June 8 and
August 28 robberies were related, and Orkman was a person
of interest because she had worked during both of the rob-
beries even though they occurred during diﬀerent shifts.
While conducting surveillance on Orkman, an IMPD oﬃcer
noticed Davis’s Land Rover parked outside of Orkman’s
apartment. The oﬃcer learned that the Land Rover had been
purchased on August 28—the same day as the second rob-
bery—and obtained a court order to place a GPS tracking de-
vice on it.
   Soon after, Davis began planning for yet another Walmart
robbery, this time at a store in Kokomo, Indiana. Davis re-
cruited his friend, Tyrone Townsell, by telling him about the
June 8 robbery. Townsell testified about the following events.
On the night of September 13, 2015, Davis and Greer picked
up Townsell in Indianapolis, and the trio, with Davis driving
the GPS-tracked Land Rover, drove north to Kokomo. Greer
and Townsell entered the store around midnight but left after
noticing that it was still full of customers. A few hours later,
Greer and Townsell entered the store a second time, after 3:00
a.m. on September 14, while employees Lucy Bishop and Tom
Johnson were working.
    Bishop, Johnson, and Townsell added the following de-
tails, most of which were also captured on video. Greer held
a gun up to Johnson, and after Bishop approached, Greer told
Johnson and Bishop to stay quiet. Bishop unlocked the cash
room, and Greer and Townsell followed the employees
Nos. 18-2634 & 18-3129                                         5

inside. Greer and Townsell ordered Johnson to open a safe
and load cash into a suitcase inside a shopping cart; he com-
plied. Greer also grabbed bundles of cash. Greer displayed the
handgun to Johnson and Bishop and made them kneel in the
back room, where he restrained them with duct tape and zip
ties. Townsell carried the cash out of the store in the suitcase,
with Greer following close behind. They returned to Davis’s
Land Rover and drove back to Indianapolis via back roads in
the hope of avoiding any police oﬃcers. The trio went to Da-
vis’s apartment, and Greer took photographs of the cash sit-
ting on the table in the apartment. The photographs were ul-
timately retrieved from Greer’s phone.
    The GPS tracking device allowed the IMPD to pinpoint the
location of the Land Rover after the department received an
alert about the Kokomo Walmart robbery. Oﬃcers arrested
Davis, Greer, and Townsell during a traﬃc stop in Indianap-
olis. Inside Davis’s Land Rover, law enforcement found a gun,
two stashes of cash ($23,862 and $9,088) in a green bag in the
cargo area, and $17,020 in a bag on the front passenger floor-
board. At the time of the arrest, Greer had $8,205 in his pocket
and Davis had $1,958 in his.
   The police also executed a search warrant for Davis’s
apartment. They found a bag of quarters stamped “Walmart
5804,” which was the unique store number of the Indianapolis
Walmart. Oﬃcers also found ammunition, additional cash,
and the suitcase taken from the Kokomo Walmart; that suit-
case still had the Walmart store tag attached to it. The FBI de-
termined that the robbers had stolen, in total, about $225,000
from the Walmart stores.
   The government eventually obtained a third superseding
indictment against Davis, Greer, Williams, Townsell, and
6                                         Nos. 18-2634 & 18-3129

Orkman. With respect to Davis and Greer, the government
charged the following:

 Count Violated      Robbery Robbery                Defendant
       Statute –     Date    Location
       18 U.S.C.
 1     § 1951        6/8/15          Indianapolis   Davis, Greer
 2       § 924(c)    6/8/15          Indianapolis   Davis, Greer
 3       § 1951      8/28/15         Indianapolis   Davis
 4       § 924(c)    8/28/15         Indianapolis   Davis
 5       § 1951      9/14/15         Kokomo         Davis, Greer
 6       § 924(c)    9/14/15         Kokomo         Davis, Greer
 7       § 922(g)    9/14/15         Kokomo         Greer
 8       § 1951(a)   6/8/15 –        Indiana        Davis, Greer
                     9/15/15

   Davis and Greer proceeded to a jury trial, and the jury
found each man guilty on all counts as charged. The district
court denied Davis’s and Greer’s Rule 29 motions for judg-
ment of acquittal, finding that suﬃcient evidence was pre-
sented at trial to sustain each of the charged oﬀenses.
                                II
    We review a trial court’s ruling on a Rule 29 motion de
novo, asking only “whether evidence exists from which any
rational trier of fact could have found the essential elements
of a crime beyond a reasonable doubt.” United States v. Doody,
600 F.3d 752, 754 (7th Cir. 2010). “Reversal under this
Nos. 18-2634 & 18-3129                                         7

standard is rare because we defer heavily to the jury’s find-
ings and review evidence in the light most favorable to the
government.” United States v. Johnson, 874 F.3d 990, 998 (7th
Cir. 2017). We will reverse only when no rational trier of fact
could have found the defendant guilty. Id.
                               A
    Davis contends that there was insuﬃcient evidence for his
convictions on Counts 1, 3, and 4. We start with Count 1,
which charges Davis with interference with interstate com-
merce by robbery, in violation of 18 U.S.C. § 1951, in connec-
tion with the June 8 robbery of the Indianapolis Walmart. Da-
vis argues that the evidence at trial failed to link him to the
June 8 robbery. He asserts that the government did not oﬀer
any testimony from any witnesses of the robbery that estab-
lished his presence at the Indianapolis Walmart on June 8.
Moreover, he was never identified as a person who entered
the Walmart and held up the employees in exchange for
money.
    Davis, however, was charged with all three Walmart rob-
beries as an aider and abettor. See 18 U.S.C. § 2(a). Aiding and
abetting requires that a person (1) act in furtherance of the of-
fense (2) with the intent to help the oﬀense’s commission.
United States v. Rivera, 901 F.3d 896, 901 (7th Cir. 2018). The
government is not required to prove that the defendant as-
sisted every element of the underlying oﬀense. United States
v. Woods, 148 F.3d 843, 850 (7th Cir. 1998). Instead, it must
show only that the defendant “contributed at least one act of
aﬃrmative assistance.” Id.
  Although Davis might not have physically entered the
Walmart during the robbery, the government provided ample
8                                      Nos. 18-2634 & 18-3129

evidence that he aﬃrmatively assisted in at least one way.
Orkman testified that Davis was the getaway driver for the
June 8 robbery, and Davis also drove Orkman and Greer to
the store. When an armed robbery defendant acts with
knowledge, “merely transporting the robber and the firearm
to the scene of the crime amounts to facilitation suﬃcient to
support the jury verdict.” Id. at 848.
    Other evidence also supports the jury’s determination that
Davis participated in robbing the Indianapolis Walmart on
June 8. Location data from Davis’s phone placed him near the
Indianapolis Walmart around the time of the robbery. Photo-
graphs were recovered from Davis’s phone, including some
from June 8 depicting a large amount of cash spread on his
living room table. Orkman testified that Davis gave her $1,500
for her role in the June 8 robbery. Moreover, when Davis’s
apartment was searched, the bag of quarters recovered was
stamped “Walmart 5804,” which was the unique store num-
ber of the Indianapolis Walmart. Although the bag of quarters
could have been stolen during the second Indianapolis
Walmart robbery, the “jury did not need to look at the evi-
dence for each robbery ‘in isolation from the others.’” Rivera,
901 F.3d at 901. It could consider evidence of Davis’s actions
during the other robberies to infer reasonably that Davis par-
ticipated in the June 8 robbery. Id. A reasonable jury could
conclude, as this jury did, that Davis was guilty beyond a rea-
sonable doubt on Count 1.
    We now turn to Counts 3 and 4. Count 3 charged Davis
with interference with interstate commerce by robbery, in vi-
olation of 18 U.S.C. § 1951. Count 4 charged Davis with using,
carrying, or brandishing a firearm during a crime of violence,
Nos. 18-2634 & 18-3129                                          9

in violation of 18 U.S.C. § 924(c). Both counts refer to the Au-
gust 28 robbery of the Indianapolis Walmart.
    Davis’s argument for Count 3 focuses on the statutory def-
inition of robbery. Section 1951 defines robbery as “the un-
lawful taking or obtaining of personal property from the per-
son or in the presence of another, against his will, by means
of actual or threatened force, or violence, or fear of injury, im-
mediate or future, to his person or property, or property in his
custody or possession … .” 18 U.S.C. § 1951(b)(1). Davis ar-
gues that the government’s evidence did not show that “ac-
tual or threatened force” was used during the August 28 rob-
bery.
    His argument rests on Orkman’s advance knowledge of
the robbery, because she was the only Walmart employee pre-
sent at the time of the robbery. Davis claims that the video
evidence shows Orkman looking relaxed as she helped Wil-
liams gather cash from the safe. Davis highlights that Wil-
liams was also relaxed, even setting down his gun as he was
collecting and bundling the money. Because Orkman showed
no fear during the robbery and Williams was relaxed, Davis
argues, Orkman was a co-conspirator and the government did
not provide suﬃcient evidence of “actual or threatened force”
for the conviction on Count 3.
    The jury, however, reasonably drew a diﬀerent inference
from Williams’s and Orkman’s testimony. Williams testified
that when he pulled a gun on Orkman, it was a threat. Ork-
man also testified that she thought Williams would shoot her
if she did not comply with his demands. In addition, before
the August 28 robbery, Orkman told Davis that she no longer
wanted to be involved in future robberies, and Davis told her
that if she said anything, “they will kill you.” This evidence
10                                     Nos. 18-2634 & 18-3129

contradicts Davis’s assertion that Orkman was a “relaxed” co-
conspirator. Whether or not Orkman was a co-conspirator in
the August 28 heist, there was ample testimony supporting a
finding that she feared injury during the robbery and that her
fear was reasonable. See United States v. Mitov, 460 F.3d 901,
907 (7th Cir. 2006) (stating that a fear of economic harm need
only be reasonable for Hobbs Act extortion). We see no reason
to disturb the jury’s conclusion on Count 3.
   Count 3 served as the predicate oﬀense to convict Davis
on Count 4. Davis argues that since there was insuﬃcient ev-
idence to sustain his Count 3 conviction, we should vacate his
conviction on Count 4. Because we find that suﬃcient evi-
dence supports Davis’s conviction on Count 3, we also aﬃrm
the jury’s verdict on Count 4.
                              B
    We now turn to Greer. Greer argues that the government
presented insuﬃcient evidence for his convictions on Counts
1 and 5. Both counts charge Greer with interference with in-
terstate commerce by robbery, in violation of 18 U.S.C. § 1951.
Count 1 refers to the June 8 robbery of the Indianapolis
Walmart, and Count 5 refers to the September 14 robbery of
the Kokomo Walmart.
    Greer contends that his brother, Williams, was responsible
for both robberies. He claims that Williams was therefore mo-
tivated to blame anyone else and lied during his testimony.
Because of the similarities in their height and complexion,
Greer claims that he was an easy target for that blame. More-
over, Greer argues, Williams faced a life sentence if he failed
to cooperate, so he could not be a reliable witness.
Nos. 18-2634 & 18-3129                                        11

    Williams, however, was not the only witness to identify
Greer. Greer’s co-conspirators also testified against him. Ork-
man identified Greer as the gunman in the June 8 robbery,
and Townsell identified Greer as the gunman in the Septem-
ber 14 robbery. Greer claims that his co-conspirators’ identifi-
cations are also not persuasive because of their plea agree-
ments, but Greer forgets about the Walmart employees who
testified. Greene, an employee at the Indianapolis Walmart
when it was robbed, testified that Greer was the gunman in
the June 8 robbery, and Johnson, an employee at the Kokomo
Walmart when it was robbed, testified that Greer was a robber
in the September 14 robbery. “It is the jury’s job, and not ours,
to gauge the credibility of the witnesses and decide what in-
ferences to draw from the evidence.” United States v. Steven-
son, 680 F.3d 854, 857 (7th Cir. 2012). “We do not second guess
such determinations on appeal.” Id. The jury believed that
Greer, and not Williams, was the gunman in both robberies,
and we will not question that decision.
     Furthermore, the eyewitness identifications are not the
only evidence supporting Greer’s conviction. The jury saw the
surveillance videos of the June 8 and September 14 robberies,
and although details of the perpetrators’ faces were not en-
tirely clear, the jury was entitled to find that each video cor-
roborated the identifications. In addition, for the September
14 robbery, location data from Greer’s phone placed him in
the vicinity of the Kokomo Walmart at the time of the crime.
Greer also photographed large amounts of cash after the Sep-
tember 14 robbery, and these photographs were recovered
from his phone. Moreover, when the Land Rover was
stopped, Greer had $8,205 in his pocket, and a bag of $17,020
was at the floor of the front passenger seat where he had been
sitting. Based on this corroborating evidence, the jury was
12                                     Nos. 18-2634 & 18-3129

entitled to conclude that Greer was guilty beyond a reasona-
ble doubt on Counts 1 and 5.
     We therefore AFFIRM the judgments of the district court.