                          IN THE SUPREME COURT OF MISSISSIPPI
                                   NO. 95-KP-00186-SCT
ROY SMITH a/k/a ROY VERNON SMITH
v.
STATE OF MISSISSIPPI
THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED,
                        PURSUANT TO M.R.A.P. 35-A
DATE OF JUDGMENT:                                01/25/95
TRIAL JUDGE:                                     HON. JOSEPH H. LOPER JR.
COURT FROM WHICH APPEALED:                       ATTALA COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                          PRO SE
ATTORNEY FOR APPELLEE:                           OFFICE OF THE ATTORNEY GENERAL

                                                 BY: JEFFREY A. KLINGFUSS
DISTRICT ATTORNEY                                DOUG EVANS
NATURE OF THE CASE:                              CRIMINAL - POST CONVICTION RELIEF
DISPOSITION:                                     AFFIRMED - 4/10/97
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

     BEFORE DAN LEE, C.J., McRAE AND SMITH, JJ.

     SMITH, JUSTICE, FOR THE COURT:

Roy Smith prays for relief from the judgment of the Attala County Circuit Court denying post
conviction relief on the grounds that he was tricked by his attorney and the county sheriff into
pleading guilty to two counts of murder. Smith asserts that he was promised that he would serve ten
years in the county jail, but that a short time later he was transferred to Parchman. Smith asserts that
had he known that he would be sent to Parchman upon being found guilty, he would have proceeded
to trial. This Court finds no merit to the issue presented and therefore affirms the finding of the trial
court per curiam.

                                                FACTS

On August 23, 1991, Roy Vernon Smith plead guilty in open court to the murders of Billy Ray King
and Maxine P. Newsome. He was sentenced to serve two concurrent terms in the Mississippi
Department of Corrections. It is Smith's claim that the only reason that he pled guilty is because he
was promised by his attorney and by the county sheriff that he would serve the duration of his term in
the county jail as a trusty and never go to Parchman. In July, 1992, Smith was taken to Parchman for
medical treatment, and placed in the general population.

On August 27, 1994, Smith filed this action, claiming that his plea of guilty was not knowingly,
intelligently, and voluntarily entered into, and that he was denied effective assistance of counsel
within the meaning of the Sixth Amendment of the Constitution of the United States. On January 25,
1995, the circuit judge entered an order denying post conviction relief, stating as his reason that the
motion was time-barred. Aggrieved, Smith appeals.

                                      STANDARD OF REVIEW

This Court will not set aside findings of a trial court sitting without a jury unless such findings are
clearly erroneous. Schmitt v. State, 560 So. 2d 148, 151 (Miss. 1990).

                                       DISCUSSION OF LAW

Smith cites two issues for the Court's consideration. Because of the disposition of the first, we find it
unnecessary to consider the second.

                                                    I.

WHETHER THE TRIAL COURT ERRED IN SUMMARILY DISMISSING SMITH'S POST
CONVICTION CLAIMS WITHOUT AN EVIDENTIARY HEARING.

Miss.Code Ann. § 99-39-5(2) (Supp. 1996) allows a defendant three years after the entry of an order
of conviction in which he may attack his conviction and ask for an evidentiary hearing. Smith filed his
appeal on August 27, 1994, four days past the statutory deadline for appealing a conviction under a
plea. Accordingly, the trial judge summarily dismissed Smith's motion to vacate his conviction and
sentence.

Smith contends that the date of conviction is not the relevant date. Rather, it is his position that the
statute of limitations was tolled on the date that the state broke its agreement, which would have
been July, 1992. Therefore, according to Smith, he still had time to file his appeal.

Miss.Code Ann. § 99-39-5(2) lists several exceptions to the three year limitation. Among these are:
(1) an intervening decision of either the Mississippi Supreme Court or the United States Supreme
Court which would have adversely affected the outcome of his conviction or sentence; (2) evidence,
not reasonably discoverable at the time of his plea, which is of such a nature that it almost
conclusively would have changed the outcome of a conviction or sentence; (3) the prisoner claims
that his sentence has expired or that his probation, parole, or conditional release has been revoked. In
this case, there has been no intervening decision which would be sufficient to adversely affect the
outcome of Smith's guilty plea. Neither has there been any new evidence presented which would
change the outcome of the sentence or the conviction. Finally, Smith's sentence has not expired, and
he is not currently on probation, parole, or conditional release. Thus, this Court finds that Smith's
appeal was procedurally barred. As a result, the balance of the issues cited by Smith are moot.
                                           CONCLUSION

This Court finds that the trial court did not err in summarily dismissing Roy Smith's claims in that
they were time-barred. Therefore the judgment of the trial court should be affirmed.

DENIAL OF POST-CONVICTION RELIEF AFFIRMED.

LEE, C.J., PRATHER AND SULLIVAN, P.JJ., PITTMAN, BANKS, McRAE, ROBERTS
AND MILLS, JJ., CONCUR.


                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                   July 25, 2013
                                TENTH CIRCUIT
                                                               Elisabeth A. Shumaker
                                                                   Clerk of Court

 MICHAEL ORLANDO ROLLIE,

              Petitioner - Appellant,
                                                        No. 13-1248
 v.                                            (D.C. No. 1:12-CV-02120-LTB)
                                                         D. Colorado
 FRANCES FALK, and THE
 ATTORNEY GENERAL OF THE
 STATE OF COLORADO,

              Respondents - Appellees.

                           ORDER DENYING
                    CERTIFICATE OF APPEALABILITY *

Before TYMKOVICH, ANDERSON, and BACHARACH, Circuit Judges.

      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this matter. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      *
        This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be
cited under the terms and conditions of 10th Cir. R. 32.1.
      Petitioner and Colorado state prisoner, Michael Orlando Rollie, proceeding

pro se, seeks a certificate of appealability (“COA”) to enable him to appeal the

dismissal of his 28 U.S.C. § 2254 application for a writ of habeas corpus. His

§ 2254 application challenged the validity of his conviction in a Colorado state

court case. Concluding that Mr. Rollie has failed to demonstrate that he is

entitled to the issuance of a COA, we deny him a COA and dismiss this matter.

                                BACKGROUND

      As noted by the district court, the Colorado Court of Appeals summarized

the lengthy state court proceedings in the relevant Colorado case (Boulder County

district court case No. 96CR677) as follows:

             In November 1996, defendant was convicted on a jury verdict
      of first degree assault, third degree assault, menacing, reckless
      endangerment, prohibited use of a weapon (reckless discharge), and
      prohibited use of a weapon (possession under the influence).

            In April 1997, the trial court granted defendant’s motion for a
      new trial based on the court’s failure to instruct the jury on
      provocation. The order granting a new trial was affirmed on appeal.
      See People v. Rollie, (Colo. App. No. 97CA0850, May 7, 1998) (not
      published pursuant to C.A.R. 35(f)).

             In April 1999, defendant pleaded guilty to menacing, and, on
      June 4, 1999, the trial court sentenced him to thirty months in the
      custody of the Department of Corrections (DOC). Thereafter, the
      trial court granted defendant’s motion for reconsideration of his
      sentence under Crim. P. 35(b), reducing his sentence to eighteen
      months in the custody of the DOC.

                                        -2-
       In March 2010, defendant filed a Crim. P. 35(c) motion,
arguing that (1) his plea counsel was ineffective because he
incorrectly advised him that, if he went to trial, there would be no
possibility of an acquittal and a heat of passion instruction would
only mitigate the conviction to a class five felony; and (2) the trial
court failed to advise him of his constitutional rights and the
elements of the crime to which he pled guilty. Defendant
acknowledged that his motion was untimely but alleged there was
justifiable excuse or excusable neglect because his counsel was
ineffective and he did not know that his conviction was
constitutionally infirm.

       On June 18, 2010, the trial court denied defendant’s motion as
time barred, finding that defendant did not “allege facts which, if
true, would establish justifiable excuse or excusable neglect” because
“the ineffectiveness of his [plea] counsel [had] no bearing on the
reasonableness of [his] delay in filing a post-conviction motion.”
The court further found that neither “the lack of any ‘present need’ to
collaterally attack a prior conviction, nor the recent discovery of a
legal basis for a collateral attack, constitute[d] justifiable excuse or
excusable neglect.”

       On June 30, 2010, defendant filed a pro se “Petition for Crim.
P. 35(c) Rehearing,” requesting that the court reconsider its finding
that there was no justifiable excuse or excusable neglect for the late
filing of his Crim. P. 35(c) motion. Defendant alleged that, in a
subsequent criminal case that arose in 2006 (2006 case), the trial
court’s “fail[ure] to litigate the constitutional admissibility” of his
1999 conviction gave him the present need to challenge the
conviction under Crim. P. 35(c) and that he asked his defense
counsel in the 2006 case to file a Crim P. 35(c) motion challenging
the prior conviction but counsel did not do so.

       On August 17, 2010, the trial court denied defendant’s motion,
again finding that defendant failed to establish justifiable excuse or
excusable neglect because the allegations did not show why he could
not have filed a postconviction motion within the three-year
limitations period.

      On October 13, 2010, defendant appealed the trial court’s June
18, 2010, and August 17, 2010, orders, along with a request to accept

                                   -3-
      the notice of appeal as timely filed. On November 12, 2010, the
      motions division of this court dismissed the appeal as to the June 18,
      2010, order but accepted the notice of appeal as timely with regard to
      the August 17, 2010, order.

Order at 2-4 (quoting People v. Rollie, No. 10CA2111 (Colo. Ct. App. Dec. 22,

2011)).

      The Colorado Court of Appeals then affirmed the trial court’s denial of

Mr. Rollie’s petition for rehearing of the court order denying his postconviction

motion under Colo. R. Crim. P. 35(c). On May 29, 2012, the Colorado Supreme

Court denied certiorari.

      Mr. Rollie subsequently filed, on August 10, 2012, his original 28 U.S.C.

§ 2254 application (the instant application) in federal district court. He filed an

amended application on September 5, 2012. In his amended application, Mr.

Rollie asserted five claims, all relating to the 1996 Colorado state conviction,

No. 96CR677, and described as follows by the district court:

      (1)    The reinstatement of trial counsel after the trial court found
             counsel to be ineffective violated his Sixth and Fourteenth
             amendment rights to conflict-free counsel;
      (2)    The trial court and trial counsel failed to advise him of his
             constitutional rights pursuant to Colo. R. Crim. P. 32(c) and
             Colo. R. Crim. P. 35(c), causing the conviction in No.
             96CR677 to be constitutionally invalid;
      (3)    “The defendant has a present need pursuant to the IV ABA
             Standards for Criminal Justice § 22.2-4 (2d ed. 1986) (ABA
             Standards), when the challenged conviction, 96CR677, was
             used against him and was a factor in sentencing in his Denver
             criminal case which is pending on appeal in 08CA391”;
      (4)    “When the defendant was not allowed an opportunity to ensure
             that the unconstitutional conviction, 96CR677, was not used

                                          -4-
             against him in his Denver criminal case which is pending on
             appeal in 08CA391, his due process of law right was violated”;
      (5)    “The Defendant’s guilty plea to the menacing charge was not
             knowingly entered.”

Order at 4 (quoting Amended Application for a Writ of Habeas Corpus Pursuant

to 28 U.S.C. § 2254 at 5-13; R. Vol. 1 at 50-58).

      On October 16, 2012, the magistrate judge to whom the matter had been

referred directed the Respondents (the Warden and the Colorado Attorney

General) to file a pre-answer Response limited to addressing the affirmative

defenses of timeliness under 28 U.S.C. § 2244(d) and exhaustion of state court

remedies under 28 U.S.C. § 2254(b)(1)(A). Respondents argued, first, that

Mr. Rollie fails to meet the “in custody” requirement under § 2254(a) because the

conviction he challenges (the 1996 conviction in case No. 96CR677) has expired,

inasmuch as he has long since completed service of his sentence, and he fails to

allege adequately any exception to that “in custody” requirement. They thus

argued that the district court lacked jurisdiction to consider Mr. Rollie’s § 2254

application. See Broomes v. Ashcroft, 358 F.3d 1251, 1254 (10th Cir. 2004)

(“The ‘in custody’ language of § 2254 is jurisdictional and requires habeas

petitioners to be ‘in custody’ under the conviction or sentence under attack when

they file the petition.”), abrogated on other grounds, Padilla v. Kentucky, 559

U.S. 356 (2010).

                                         -5-
      Second, they argued that Mr. Rollie’s application was untimely under the

one-year statute of limitations for habeas petitions, provided by the Antiterrorism

and Effective Death Penalty Act (“AEDPA”). Finally, Respondents claimed that

Mr. Rollie had failed to exhaust his claims by fairly presenting them to the

Colorado state courts, and “any attempt to file a new motion [in state court]

would be rejected as time barred, successive, and an abuse of process [and thus]

are anticipatorily defaulted.” Pre-Answer Response at 13-14; R. Vol. 1 at 86-87. 1

      The district court subsequently dismissed Mr. Rollie’s § 2254 petition for

lack of jurisdiction and as barred by the one-year limitation period in 28 U.S.C.

§ 2254(d). The court further determined that no COA would issue “because

Applicant has not made a substantial showing of the denial of a constitutional

right.” Order at 12. Finally, the court denied leave to proceed in forma pauperis

on appeal. As indicated, Mr. Rollie now seeks a COA from our court to enable

him to appeal that order of dismissal.

                                  DISCUSSION

      “A COA is a prerequisite to appellate jurisdiction in a habeas action.”

Lockett v. Trammel, 711 F.3d 1218, 1230 (10th Cir. 2013). It may issue “only if

      1
       As we have stated, “‘[a]nticipatory procedural bar’ occurs when the federal
courts apply procedural bar to an unexhausted claim that would be procedurally
barred under state law if the petitioner returned to state court to exhaust it.”
Anderson v. Sirmons, 476 F.3d 1131, 1139 n.7 (10th Cir. 2007) (quoting Moore v.
Schoeman, 288 F.3d 1231, 1233 n.3 (10th Cir. 2002)).

                                         -6-
the applicant has made a substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2). “Where a district court has rejected . . .

constitutional claims on the[ir] merits,” the applicant “must demonstrate that

reasonable jurists would find the district court’s assessment of the constitutional

claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

Where a district court’s ruling rests on procedural grounds, the applicant must

show both “that jurists of reason would find it debatable whether the petition

states a valid claim of the denial of a constitutional right and that jurists of reason

would find it debatable whether the district court was correct in its procedural

ruling.” Id.; Woodward v. Cline, 693 F.3d 1289, 1292 (10th Cir. 2012).

      The district court carefully and thoroughly explained why Mr. Rollie’s case

must be dismissed. It explained why the court lacked jurisdiction to review Mr.

Rollie’s petition, and, moreover, why the application was time-barred. We cannot

improve on the district court’s explanation and analysis. Mr. Rollie has failed to

develop any grounds for disagreeing or questioning that court’s discussion,

reasoning and holding. We therefore agree with the district court that, for

substantially the reasons stated by the court in its order of dismissal, Mr. Rollie

has failed to establish that he is entitled to the issuance of a COA.

                                          -7-
                               CONCLUSION

      For the foregoing reasons, we DENY Mr. Rollie a COA and DISMISS this

matter. We also DENY his request to proceed on appeal in forma pauperis.

                                           ENTERED FOR THE COURT

                                           Stephen H. Anderson
                                           Circuit Judge

                                     -8-


                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS         October 2, 2003
                        FOR THE FIFTH CIRCUIT
                                                          Charles R. Fulbruge III
                                                                  Clerk

                             No. 03-20467
                           Summary Calendar

JOHN GRAY,

                                     Petitioner-Appellant,

versus

DOUGLAS DRETKE, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                     Respondent-Appellee.

                          --------------------
             Appeal from the United States District Court
                  for the Southern District of Texas
                         USDC No. H-02-CV-4338
                          --------------------

Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.

PER CURIAM:*

     John Gray, Texas prisoner # 475245, appeals the district

court’s refusal to order that the filing fee for Gray’s appeal in

his 28 U.S.C. § 2254 petition (no. 03-20147) be paid with funds

in prison release account.    The Prisoner Litigation Reform Act

does not apply to 28 U.S.C. § 2254 cases.     Carson v. Johnson, 112

F.3d 818, 820 (5th Cir. 1997).    Once the district court

determined that Gray could proceed in forma pauperis on appeal,

     *
        Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                            No. 03-20467
                                 -2-

there was no need to assess a partial filing fee or payment

schedule for the appellate filing fees.     FED. R. APP. P. 24(a).

Gray may proceed in his 2254 action without paying a filing fee.

Furthermore, Gray fails to show that there is any money in his

release account or that funds therein can be used to pay

appellate filing fees.    See TEX. GOV’T CODE ANN. § 501.015(b).

Gray’s instant appeal is without arguable merit and dismissed.

See 5TH CIR. 42.2.   His motion for relief from the district court

order denying payment from his prison funds is denied.

     APPEAL DISMISSED.    MOTION DENIED.


            UNITED STATES NAVY-MARINE CORPS
               COURT OF CRIMINAL APPEALS
                    WASHINGTON, D.C.

                               Before
              J.A. FISCHER, B.T. PALMER, J.S. SMITH
                      Appellate Military Judges

                   UNITED STATES OF AMERICA

                               v.

                    CODY T. SHOEMAKER
        MISSILE TECHNICIAN THIRD CLASS (E-4), U.S. NAVY

                       NMCCA 201500312
                   GENERAL COURT-MARTIAL

Sentence Adjudged: 2 June 2015.
Military Judge: CAPT Robert B. Blazewick, JAGC, USN.
Convening Authority: Commander, Navy Region Southeast,
Naval Air Station, Jacksonville, FL.
Staff Judge Advocate's Recommendation: CDR N.O. Evans,
JAGC, USN.
For Appellant: LCDR Emily Harrelson, JAGC, USN.
For Appellee: Mr. Brian Keller, Esq.

                       22 December 2015

    ---------------------------------------------------
                    OPINION OF THE COURT
    ---------------------------------------------------

     After careful consideration of the record, submitted
without assignment of error, we affirm the findings and sentence
as approved by the convening authority. Art. 66(c), Uniform
Code of Military Justice, 10 U.S.C. § 866(c).

                             For the Court

                             R.H. TROIDL
                             Clerk of Court


                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: September 17, 2015                   105569
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

JULIO A. ROMERO, Also Known as
   BLACK,
                    Appellant.
________________________________

Calendar Date:   August 10, 2015

Before:   Peters, P.J., Garry, Lynch and Devine, JJ.

                             __________

     Justin C. Brusgul, Voorheesville, for appellant.

      Karen Heggen, District Attorney, Ballston Spa (Kristin T.
Foust of counsel), for respondent.

                             __________

      Appeal from a judgment of the County Court of Saratoga
County (Scarano, J.), rendered September 20, 2012, convicting
defendant upon his plea of guilty of the crime of attempted
criminal sale of a controlled substance in the third degree.

      In satisfaction of a three-count indictment, defendant
pleaded guilty to attempted criminal sale of a controlled
substance in the third degree and waived his right to appeal. In
accordance with the plea agreement, he was sentenced to two years
in prison to be followed by two years of postrelease supervision.
He now appeals.

      Appellate counsel seeks to be relieved of his assignment of
representing defendant on the ground that there are no
nonfrivolous issues to be raised on appeal. Based upon our
                              -2-                  105569

review of the record and counsel's brief, we agree. Therefore,
the judgment is affirmed and counsel's request for leave to
withdraw is granted (see People v Cruwys, 113 AD2d 979, 980
[1985], lv denied 67 NY2d 650 [1986]; see generally People v
Stokes, 95 NY2d 633 [2001]).

     Peters, P.J., Garry, Lynch and Devine, JJ., concur.

      ORDERED that the judgment is affirmed, and application to
be relieved of assignment granted.

                             ENTER:

                             Robert D. Mayberger
                             Clerk of the Court


357 F.Supp. 591 (1973)
HAMPTON HOUSE MANAGEMENT CORP., Plaintiff,
v.
Naima M. SALEH, Defendant.
No. 73 Civ. 1441.
United States District Court, S. D. New York.
April 13, 1973.
Kirschenbaum & Shapiro, New York City, for plaintiff, by Stephen Kirschenbaum, *592 and J. Robert Ellner, New York City, of counsel.
Hardee, Barovick & Konecky, New York City, for defendant, by Joseph J. Santora, and Robert B. Kay, New York City, of counsel.

MEMORANDUM
POLLACK, District Judge.
The defendant applied to this Court for a preliminary injunction against the effectiveness of a State Court injunction pendente lite entered at the instance of the plaintiff.
The papers on the motion before this Court show that: Defendant is the owner in fee of certain real property of which plaintiff is the net lessee. Basically at issue between the parties is the question of rent due under the lease. By letter dated March 6, 1973 the District Director of Internal Revenue made findings (1) concerning the ceiling rent of the premises in question for both Phase I and Phase II of the federal economic stabilization program and (2) allowing the defendant certain increases in the rent payable. He also informed the parties that his determination might be appealed to the Cost of Living Council. The plaintiff took such an appeal. Pending the outcome of that appeal, plaintiff brought an action in the New York Supreme Court seeking "an order staying defendant from enforcing its demand for increased rent pending the final determination by the appropriate agency of the United States of America of the lawful rent to be paid by plaintiff to defendant, and staying defendant from terminating plaintiff's leasehold" by forfeiture for non-payment of the disputed amount claimed as additional rent. This may in turn depend on the outcome of, and issuance of a final order in, a proceeding before the Federal authorities administering the Economic Stabilization Act of 1970. The Internal Revenue Service neither was nor is a party to this action, and would in no way be affected by its outcome or by any order heretofore or hereinafter entered in the State Court.
On the motion for a temporary injunction, Mr. Justice Samuel J. Silverman of the Supreme Court, while expressly recognizing that he could not interfere with the determination of federal administrative authorities, and in no way purporting to do so, enjoined "the sending of any further notice of termination of the leasehold by defendant until the price control dispute is finally determined by the federal authorities." It appears that the State Court viewed this case as purporting to be merely a simple landlord and tenant matter, wholly within the jurisdiction of the State Courts. The State Court did not purport to act pursuant to federal law, nor did it invoke or purport to review any federal order or regulation but, as it stated, it acted to protect "the rights of parties to a leasehold, a matter traditionally subject to adjudication in the State Courts." It cannot be gainsaid that the New York State Supreme Court has general original jurisdiction over landlord-tenant controversies.
Thereafter, on April 4, 1973 defendant removed this case from the Supreme Court of the State of New York to this Court, allegedly under the authority of 28 U.S.C. § 1441, asserting the sole ground for removal to be that the subject matter was exclusively cognizable in a federal District Court, conceiving it to be a "controversy [which] involves a dispute over a final determination of the United States Internal Revenue Service which interpreted federal regulations promulgated pursuant to the Economic Stabilization Act of 1970 (Pub.L. No. 91-379, as amended by Pub.L. No. 92-210)." This was a conception which the State Court did not share.
Assuming for the moment that the defendant's conception of this case was correct, removal jurisdiction would in any event be lacking. If the case were as defendant believes it to be, § 211(a) of the Economic Stabilization Act of 1970, as amended, would indeed vest exclusive original jurisdiction in the District Court. However, defendant *593 overlooks the exception expressly provided by that same section:
[N]othing in this subsection . . . affects the power of any court of competent jurisdiction to consider, hear, and determine any issue by way of defense (other than a defense based on the constitutionality of this title or the validity of action taken by any agency under this title) raised in any proceeding before such court. (emphasis added).
Thus, while the District Court enjoys exclusive jurisdiction to entertain an original action arising under the 1970 Act, it shares concurrent jurisdiction with the State Court to hear defenses predicated on the Act when raised in actions originally brought on other theories. This situation is neither unique nor offensive to traditional notions of federalism, preemption or supremacy; it is likewise the practice in matters arising under the Securities Exchange Act of 1934. See, e. g., Aetna State Bank v. Altheimer, 430 F.2d 750, 754 (7th Cir. 1970) (quoting Professor Loss); accord, Shareholders Management Co. v. Gregory, 449 F.2d 326 (9th Cir. 1971) (per curiam); cf. Myer v. Shields & Co., 25 A.D.2d 126, 267 N.Y.S.2d 872 (1st Dep't 1966). In the State Court action herein, plaintiff is not seeking any determination concerning any federal agency action; should defendant wish to assert such a claim, the statute expressly authorizes its adjudication by the State Court.
The defendant relies on the exception to the exception contained in § 211(a) which authorized removal
If in any such proceeding [in a court of competent jurisdiction rather than a United States District Court] an issue by way of defense is raised based on the constitutionality of this title or the validity of agency action under this title, the case shall be subject to removal by either party to a district court of the United States. (emphasis added)
Once again, the pertinent inquiry is whether the issue is raised "by way of defense." The short answer is that plaintiff does not question either the constitutionality of the Act or the validity of the Internal Revenue Service action; only its finality. Rather, the plaintiff implicitly embraced the validity and legitimacy of the agency action by seeking to have the defendant enjoined "pending the final determination by the appropriate agency of the United States of America." Defendant certainly does not and, in point of fact cannot, question the validity of the agency action; indeed, its demand is predicated on an assumption thereof. Defendant merely differs from plaintiff on this point in that she belives the determination to be a final one at this point in time. Thus, removal under this exception would be improper.
Defendant is not helped by her strong reliance on § 211(d)(1) of the 1970 Act, which provides that "no regulation [or order] of any agency exercising authority under this title shall be enjoined or set aside . . ." unless certain criteria are met. The key fact is that the State Court has in no way purported or attempted to even review, let alone enjoin or set aside, any regulation or order of any federal agency; it has merely acted to protect the property rights of parties properly before it, who also happen to hold differing views about the correctness of an Internal Revenue Service determination.
If the federal court were possessed of exclusive jurisdiction of this controversy (the ground on which removal was predicated), the State Court would be without jurisdiction to entertain this action. However, as a necessary consequence thereof, this Court would likewise obtain no jurisdiction by a removal. "When a cause is removed from a state court into a federal court, the latter takes it as it stood in the former. A want of jurisdiction in the state court is not cured by the removal, but may be asserted after it is consummated." General Investment Co. v. Lake *594 Shore & M. S. Ry., 260 U.S. 261, 287-288, 43 S.Ct. 106, 117, 67 L.Ed. 244 (1922). This is so despite the fact that the federal court would have had jurisdiction over a like suit originally brought there. Lambert Run Coal Co. v. Baltimore & Ohio R. R., 258 U.S. 377, 382, 42 S.Ct. 349, 66 L.Ed. 671 (1922); accord, Venner v. Michigan Central R. R., 271 U.S. 127, 46 S.Ct. 444, 70 L. Ed. 868 (1926); Friedr. Zoellner (New York) Corp. v. Tex Metals Co., 396 F.2d 300 (2d Cir. 1968); Liquid Carriers Corp. v. American Marine Corp., 375 F. 2d 951 (2d Cir. 1967); Iodice v. Calabrese, 291 F.Supp. 592 (S.D.N.Y.1968).
It plainly appears that defendant removed this case to this Court under a misconception of its purpose and in the absence of any federal question jurisdiction. No other basis of jurisdiction has been asserted.
The case should be and is remanded to the State Court.


                               UNITED STATES COURT OF APPEALS
                                        FIFTH CIRCUIT

                                              _________________

                                                 No. 99-20924
                                              (Summary Calendar)
                                              _________________

                  UNITED STATES OF AMERICA,

                                                      Plaintiff - Appellee,

                  versus

                  TAWANA SHELETTE COOPER,

                                                      Defendant - Appellant.

                               Appeal from the United States District Court
                                   For the Southern District of Texas
                                 District Court Number H-99-CR-206-1

                                                  June 26, 2000

Before JOLLY, DAVIS, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

         Tawana Cooper appeals her conviction and sentence for aiding and abetting the robbery of

a credit union in violation of 18 U.S.C. § 2113(a). We affirm.

         Alonzo Warren robbed the branch of the SCH Federal Credit Union (“SCH”) located at 2002

Holcombe Street (the “Holcombe branch”). Warren pled guilty to the charges against him and

         *
                  Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and
is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
testified against Cooper, his girlfriend, who had been a teller at the Holcombe branch until her firing

a few weeks earlier. Warren claimed that they planned the robbery together, that Cooper gave him

significant inside information which facilitated the robbery, and that—even though he performed the

robbery alone—she offered him assistance before and after the robbery.

       Cooper was charged in a two-count indictment with: (1) bank robbery by force and with a

dangerous weapon, in violation of 18 U.S.C. § 2113(a), (d); and (2) using a firearm during a crime

of violence, in violation of 18 U.S.C. § 924(c)(1). She was found guilty only of the lesser included

offense of simple robbery under § 2113(a). The court sentenced her to 108 months after enhancing

her sentence for use of a gun during her offense and after denying her request for a reduction for

minimal participation.

       Cooper first challenges her conviction, arguing that the evidence against her was insufficient

and that the trial court should have granted her motion for a judgment of acquittal. We review the

district court’s denial of her motion for acquittal de novo, determining whether, “viewing the evidence

in the light most favorable to the verdict and drawing all reasonable inferences from the evidence in

support of the verdict, a rational trier of fact could have found that the evidence established the

essential elements of the offense beyond a reasonable doubt.” United States v. Ferguson, — F.3d

—, 2000 WL 543817, at *4 (5th Cir. May 4, 2000). We reverse the conviction if “the evidence gives

equal or nearly equal circumstantial support to a theory of guilt, as well as to a theory of innocence.”

Id.

       Cooper argues that there was insufficient evidence that the Holcombe branch was federally

insured, a jurisdictional element of the offense which the government had to prove beyond a

reasonable doubt. See 18 U.S.C. § 2113(a); United States v. Guerrero, 169 F.3d 933, 944 (5th Cir.

                                                  -2-
1999). At trial, the government submitted an affidavit from a regional director of the National Credit

Union Administration which stated:

       SCH Federal Credit Union, charter number 17486, whose main office is located at
       1601 Pierce, Houston, Texas 77003, was first insured by the National Credit Union
       Share Insurance Fund (NCUSIF) on November 2, 1971. . . .
       ...
       SCH Federal Credit Union has been continuously insured since becoming insured by
       the NCUSIF, and in particular, was insured on June 26, 1998.

Cooper argues that this affidavit does not show that every SCH branch was federally insured, because

it suggests that only the branch at 1601 Pierce (the “Pierce branch”) was insured. However, a jury

could reasonably have concluded that each SCH branch was insured from the affidavit’s unchallenged

reference to the fact that “SCH . . . has been continuously insured,” and its menti on of the Pierce

branch only to specify the location of SCH’s main office. Coupled with testimony from the

Holcombe branch manager that the Holcombe branch was an SCH branch at the time of the robbery

and that his supervisor was located at the Pierce branch, the affidavit provides sufficient proof that

the Holcombe branch was federally insured. See United States v. Williams, 592 F.2d 1277, 1282 (5th

Cir. 1979) (finding sufficient evidence of insured status, even though it “was probably close to the

minimum we could allow,” where: (1) one officer testified that the bank was insured and that the

specific office was a branch of the bank; and (2) another officer testified that the bank was insured,

and that, even though he did not know if the insurance contract provided this, he believed all the

branches were similarly insured).

       Cooper also argues that there was insufficient evidence that she participated in the robbery.

She concedes that an aiding and abetting conviction was possible under the indictment, see United

States v. Sorrells, 145 F.3d 744, 752 (5th Cir. 1998), but she argues that aiding and abetting was not

                                                 -3-
established because there was insufficient evidence of an affirmative act by her to help the

robbery, see id. at 753 (“[T]o convict a defendant of aiding and abetting a crime under 18 U.S.C. §

2, ‘the Government must prove (1) that the defendant associated with the criminal venture, (2)

participated in the venture, and (3) sought by action to make the venture succeed.’”) (citation

omitted).

         Cooper’s argument is based on her attempt to isolate each piece of evidence against her and

offer innocuous explanations for each alone. This contradicts our directive that we review the

evidence against her in the aggregate. See United States v. Burton, 126 F.3d 666, 677 (5th Cir. 1997).

Viewing the evidence this way, it clearly sufficiently showed her participation: Warren testified that

Cooper helped plan the robbery; she gave him crucial information about the Holcombe branch; she

originally intended to take part in the robbery; she allowed him to use her gun once their original plan

failed and they decided to have him rob the Holcombe branch alone;1 she bought the duct tape that

he used; she called his employer to help him get the day off from work so he could effect the robbery;

and she helped him count, spend, and store the money after the robbery. Cf. id. at 678 (“The jury

reasonably could have found that the use of Carr's vehicle in the robbery, coupled with his sham

stolen car report, established that Carr was associated with the robbery, that he participated in it, and

         1
                  Warren testified that, acting on Cooper’s information, they planned to rob the Holcombe branch after
its biweekly receipt of a large shipment of money. Their original plan was to conduct the robbery while Cooper was
working: Warren would follow her into work, order her and the other female on duty to lie down, and then remove
the money. The presence of Cooper and the other employee alone would allow Warren to effect the robbery without
using a weapon. Cooper would then throw off the police by offering a description of Warren which contradicted the
other employee’s description.
         This plan went astray when Warren and Cooper, who lived together, overslept on the morning of the planned
robbery. This forced them to push back their plan until two weeks later, when the branch received another money
shipment. By this time, however, Cooper had been fired. Knowing that the manager would be at the branch during
the planned robbery, and concerned that he might attempt to be a “hero,” Warren decided to bring a gun and duct tape
and to go alone.

                                                         -4-
that he ‘sought by action to make the venture succeed.’”).

       Cooper next challenges the five-level sentence enhancement she received for displaying a

firearm during the robbery. See U.S.S.G. § 2B3.1(b)(2)(C) (“[I]f a firearm was brandished,

displayed, or possessed, increase by 5 levels . . . .”). The court enhanced her sentence after

concluding that it was foreseeable to her that Warren would use the gun. We review the court’s

interpretation of the Guidelines de novo and its factual findings for clear error. See United States v.

Phillips, 210 F.3d 345, 351 (5th Cir. 2000).

       Cooper argues that because the jury acquitted her of robbery with a firearm, the court’s

decision to sentence her based on using a firearm violated her constitutional rights by conflicting with

the jury verdict. We have previously rejected similar arguments, noting that, because conviction

requires a different showing of proof than a sentencing enhancement, an acquittal does not preclude

an enhancement on similar grounds. See United States v. Buchanan, 70 F.3d 818, 827-28 (5th Cir.

1995). Here, the enhancement was proper because there was reliable evidence that Cooper gave the

gun t o Warren knowing he intended to use it in the robbery. See U.S.S.G. § 2B3.1 (allowing the

enhancement); id. § 1B1.3(a)(1)(B) (including among relevant conduct, “in the case of a jointly

undertaken criminal act ivity[,] . . . all reasonably foreseeable acts and omissions of others in

furtherance of the jointly undertaken criminal activity.”).

       Finally, Cooper challenges the district court’s denial of her motion for a reduction in her

sentence for minimal participation. See U.S.S.G. § 3B1.2(a) (“If the defendant was a minimal

participant in any criminal activity, decrease by 4 levels.”). This adjustment is “used infrequently,”

see id. comment. (n.2), and we review its denial for clear error, see United States v. Waskom, 179

F.3d 303, 313 (5th Cir. 1999).

                                                  -5-
       To merit the reduction, Cooper had to show that she was “substantially less culpable than the

average participant . . . . by a preponderance of the evidence.” United States v. Posada-Rios, 158

F.3d 832, 880 (5th Cir. 1998). She argues that the jury’s “‘not guilty’ finding[s] in regard to the

aggravating elements, as a matter of law assigns a mitigating, minimal, minimum role to Cooper’s

conduct.” She cites no authority for this incorrect proposition. The jury did not acquit her of

involvement in the offense, only of using a gun in the offense. It did convict her of aiding and

abetting, based on the substantial assistance she provided to Warren. In light of her role in planning,

providing Warren with supplies and information, and helping him count and spend the money after

the robbery, it was not clear error for the court to deny her reduction request.

       Accordingly, we AFFIRM Cooper’s conviction and sentence.

                                                 -6-


420 F.2d 324
UNITED STATES of America, Appellee,v.339.77 ACRES OF LAND, MORE OR LESS, IN JOHNSON AND LOGAN COUNTIES, ARKANSAS; and Ralph Sykes, Appellant, et al., and Unknown Owners.
No. 19656.
United States Court of Appeals Eighth Circuit.
January 8, 1970.
Rehearing Denied February 13, 1970.

Ralph Sykes, pro se.
Charles N. Woodruff, Atty., Dept. of Justice, Washington, D. C., for appellee, Shiro Kashiwa, Asst.Atty.Gen., S. Billingsley Hill, Atty., Dept. of Justice, Washington, D. C., and Bethel B. Larey, U. S. Atty., Fort Smith, Ark., on the brief.
Before BLACKMUN, MEHAFFY and LAY, Circuit Judges.
LAY, Circuit Judge.

1
This appeal involves another in a series of condemnation actions growing out of the Dardanelle Lake and Dam project on the Arkansas River. The landowner, Mr. Sykes, originally withdrew, at the time of the taking of the land in question, the government deposit of $10,000. In December 1966 the district court approved a Commission's determination of "just compensation" at $3,075. On appeal, the judgment was reversed by this court, Sykes v. United States, 392 F.2d 735 (8 Cir. 1968), by reason of certain errors made in the Commission's findings. Upon retrial before a jury, a verdict was rendered in favor of the landowner in the sum of $5,500. Final judgment was entered for the government as to the difference between the amount of the verdict and the amount previously deposited and withdrawn by the landowner. The judgment we review is in the amount of $4,500, with interest from June 3, 1963, the date of the original disbursement.

2
Although represented by counsel in the jury trial, the landowner now appears, as he did in the first appeal, without counsel. His brief does not conform with Rule 28 of the Federal Rules of Appellate Procedure, and his appeal is subject to dismissal for this reason. Cf. Lowe v. Taylor Steel Products Co., 373 F.2d 65 (8 Cir.1967). However, since appellant appears without counsel, we have again painstakingly reviewed the entire record in an attempt to appraise his overall claim that a grievous injustice has been done. We observe, however, that appellant's brief is so vague, unintelligible and grossly repetitious that this court has difficulty in determining what error the landowner now asserts. We can only surmise that he is dissatisfied with the jury's valuation of the land taken. We therefore approach our review solely on the issue as to whether there exists substantial evidence to sustain the jury's award of "just compensation."

3
The government has taken for use the landowner's tract of 18.98 acres of land which covers a mine containing semianthracite coal.1 The date of the taking was May 22, 1963. Appellant has in the past occasionally leased the use of the mine and has received $1.25 a ton for the limited quantity of coal removed. According to the evidence, the last coal mined under a lease agreement occurred in the early part of 1961, when $914.83 was paid for the extraction of approximately 700 tons. In many years of the landowner's ownership, the evidence shows no coal was removed. The taking reserved the mineral rights to the coal in the landowner, but subordinated such ownership to the right of the United States to flood. The evidence shows that the taking, for all practical purposes, destroyed the landowner's use of the rights reserved. As the trial court instructed, the landowner was entitled to the fair market value of the land as it was enhanced by the mineral rights actually deprived, as well as by the improvements (fixtures) thereon.

4
The landowner was the only witness, appearing in his behalf, who gave an opinion as to the value of the land. He appraised the land before the taking at $111,674, including $30,000 for the equipment destroyed by the flooding; and with an appraised valuation of $3,000 after the taking. His valuation was based upon an estimated 63,340 tons of recoverable coal still in the mine at $1.25 per ton or a total of $81,674.

5
The government's expert, Mr. Mabry, was an appraiser with the Corps of Engineers. He valued the 40 acre tract at $50.00 an acre, exclusive of the coal mine, and the value retained by the landowner at $1,025. His appraised value of "just compensation" was only $975 for the use of the landowner's property. He assessed no enhanced value for the destruction of the mineral rights retained, and observed that the fixtures in and about the mine were obsolete and valueless. This appraisal was corroborated in part by testimony from a geologist and mining consultant from Little Rock, a hydrological engineer and a geologist from the Corps of Engineers, and a witness from Ft. Smith, Arkansas, who had bought and sold coal mines for fifty years. Their testimony reflected that even before the government taking, operation of the landowner's mine was dangerous because of natural flooding conditions in the alluvial valley of Spadra Creek; that there was a limited market or demand for the coal that could be mined; that because of the difficulty in mining operations, the economic return for the coal produced would always be less than the cost or investment in producing it. It was basically because of these reasons that the witnesses concluded the coal did not enhance the value of the property involved. This testimony was contradicted, at least in part, by the landowner and witnesses produced by him.

6
Mr. Sykes urges that the testimony of the government witnesses was not correct, was biased and therefore, clearly erroneous. We have considered the testimony of the various witnesses, and within our limited area of review as to factual matters, conclude that the jury could have as reasonably believed the government witnesses as they could have believed the testimony of the landowner.2 Mr. Sykes argues a gross miscarriage of justice has taken place. Although not necessary to our conclusion, it may be desirable to point out (1) in the first appeal Mr. Sykes felt he was prejudiced since he was "forced" to appear without counsel in the Commission hearing; in contrast, in the instant case, he had competent trial counsel representing him throughout the trial; (2) in the first appeal Mr. Sykes felt he was prejudiced since he did not have a jury trial; although we stressed that the discretionary decision lay in the hands of the district judge, we urged serious consideration of the use of a jury upon retrial since both the landowner and the government had jointly requested it; in the second trial Mr. Sykes had the benefit of a jury; (3) the jury verdict does not reflect a blind acceptance of the testimony of the government's experts, but in fact awards over $4,500 more than the valuation of the one government appraiser. Cf. Equitable Life Assur. Soc. of United States v. Carmody, 131 F.2d 318, 321 (8 Cir.1942); (4) the land value assessed by Mr. Sykes, although admissible, was reached upon an erroneous concept of fair market value.3

7
Judge Bright has recently outlined the many established rules governing valuation in condemnation proceedings. United States v. 3,698.63 Acres of Land, More or Less, 416 F.2d 65 (8 Cir.1969). Not the least relevant here is that an appellate court cannot "exercise a fact-finders prerogative of balancing the evidence." 416 F.2d at 69.

8
The United States Supreme Court said long ago:

9
"The jury were the judges of the credibility of the witnesses * * * and in weighing their testimony had the right to determine how much dependence was to be placed upon it. There are many things sometimes in the conduct of a witness upon the stand, and sometimes in the mode in which his answers are drawn from him through the questioning of counsel, by which a jury are to be guided in determining the weight and credibility of his testimony. That part of every case, such as the one at bar, belongs to the jury, who are presumed to be fitted for it by their natural intelligence and their practical knowledge of men and the ways of men; and, so long as we have jury trials, they should not be disturbed in their possession of it, except in a case of manifest and extreme abuse of their function." Aetna Life Insurance Co. v. Ward, 140 U.S. 76, 88, 11 S.Ct. 720, 724, 35 L.Ed. 371 (1891).

10
We affirm the judgment of the district court on the amount to be paid as restitution with the exception of the entry of judgment governing interest to run from the date of the original disbursement. The judgment is accordingly modified to read in favor of the government against the landowner for $4,500 plus six per cent interest from December 12, 1968, the date of the judgment entered below. See 392 F.2d 735, 739 n. 2.

11
The judgment is accordingly modified as set forth above, and as so modified is affirmed.

Notes:

1
 Included in the taking was also one-half acre for an easement for flowage rights located on the remaining 20 acres owned by appellant

2
 Parenthetically, we note that Mr. Sykes in the first proceedings before the Commission valued his mineral rights at only $25,000 based upon a 50 cent per ton royalty paid to other owners in the area

3
 The landowner's error in his method of evaluating fair market value is not an original one. His attempt at valuation is similar to other mine owners in the Dardanelle project. In Mills v. United States, 363 F.2d 78 (8 Cir. 1966), this court observed:
"Cobb's valuation was simply the product of his estimate of reserves and 25¢ per ton, that is, tons in place times a suggested royalty. If one can assume, in the first instance, that these two figures are appropriate, the result reached by Cobb may properly be regarded as ignoring the large excess of the field's reserves over demand; the significance, expensewise, of the depth of the overlay; the costs of extraction which, in addition to profit, must be recouped by any operator; and the stark facts of mine abandonments and of limited current mining. Value implies demand and a buyer. Cobb's testimony assumed both but, apart from his own comment that he `would be interested in buying tracts of land such as' those of the owners, afforded proof of neither. Although minerals in place is a factor to be considered, there must be more than a mere theoretical future demand and use. `There must be some objective support for the future demand, including volume and duration. Mere physical adaptability to a use does not establish a market.'" Id. at 80-81.
In United States v. Sowards, 370 F.2d 87 (10 Cir. 1966), the court encountered the same approach to valuation, that is, tonnage multiplied by unit price. The court of appeals held that this method of valuation does not have a rational foundation, reasoning from Judge Taylor's opinion in United States ex rel. TVA v. Indian Creek Marble Co., 40 F.Supp. 811 (E.D.Tenn.1941), where he explained:
"Fixing just compensation for land taken by multiplying the number of cubic feet or yards or tons by a given price per unit has met with almost uniform disapproval of the courts. This is true because such valuation involves all of the unknown and uncertain elements which enter into the operation of the business of producing and marketing the product. It assumes not only the existence, but the continued existence of a stable demand at a stable price. It assumes a stable production cost and eliminates the risks all business men know attend the steps essential to the conduct of a manufacturing enterprise. It eliminates the possible competition of better materials of the same general description and of the possible substitution of other and more desirable materials produced or possible of production by man's ingenuity, even to the extent of rendering the involved material unmarketable. It involves the assumption that human intelligence and business capacity are negligible elements in the successful conduct of business. It would require the enumeration of every cause of business disaster to point out the fallacy of using this method of arriving at just compensation. No man of business experience would buy property on that theory of value. True it is that quality and quantity have a place in the mind of the buyer and the seller, but the product of these multiplied by a price per unit should be rejected as indicating market value when the willing seller meets the willing buyer, assuming both to be intelligent. Values fixed by witnesses on such a basis are practically worthless, and should not be accepted. To the extent the valuation fixed by any witness contains this speculative element, to the same extent is its value as evidence reduced." Id. at 822.


165 Ga. App. 876 (1983)
303 S.E.2d 144
WILBANKS
v.
THE STATE.
65421.
Court of Appeals of Georgia.
Decided March 10, 1983.
Rehearing Denied March 23, 1983.
Frank K. Martin, for appellant.
William J. Smith, District Attorney, J. Gray Conger, Assistant District Attorney, for appellee.
DEEN, Presiding Judge.
Among the several businesses owned by appellant Lenward Wilbanks, Jr., a 34-year-old Columbus entrepreneur, were three hair-styling salons operating under a "Command Performance" franchise. On May 4, 1981, Wilbanks was charged with arson in the first degree and, after a Muscogee County jury found him guilty, was sentenced to serve six years in prison followed by six years on probation. He appeals from this judgment on the general grounds and further enumerates a series of errors centering upon allegedly prejudicial jury instructions, the prosecuting attorney's questionable conduct at trial, and the court's exclusion of demonstrative evidence of the location and extent of the accused's burns. Also assigned as error is the court's denial of multiple motions for a directed verdict of acquittal and for mistrial based on the errors enumerated above.
The evidence shows that during a ten-day period immediately prior to the May 4 fire there occurred, according to Columbus police records, at least one, and perhaps two, unsuccessful attempts at arson of the same premises.[1] Appellant produced at trial voluminous documentation of a business trip to several distant cities during the period encompassing the date or dates of the abortive fire or fires. There was also evidence that five days prior to the first attempt Wilbanks was treated at a local hospital for facial burns and singed hair, which he allegedly had incurred while grilling a steak. Appellant *877 testified that his reason for being at the arson scene was that he had intended to "stake out" the salon by concealing himself so as to watch out for would-be arsonists; there was evidence that he had previously reported vandalism at one of his other businesses, a used car lot, and had similarly "staked out" that location.
Firefighters responding to the May 4 alarm testified that they had found appellant just inside the front door, wearing tattered remnants of clothing and crying out, "It blew up; they set me up!" They further testified to finding inside the salon "trailers" of gasoline on the carpet; two five-gallon cans containing small quantities of gasoline; two gasoline-tinged work gloves (later identified as appellant's) lying in separate locations; a cigarette lighter; some keys and $2.10 in change; and general indications (scorched carpet, buckled ceiling tiles) of an explosion and fire. No wallet was found either on the premises or on appellant's person.
Appellant testified that earlier in the evening he had spent some time in a cocktail lounge with a named friend who was not called to testify and had later caught a ride to the salon with an unnamed drinking acquaintance, not driving his own automobile because he did not wish would-be perpetrators to be "scared off" by the sight of his car parked in the vicinity. He testified that he had worn gloves so as not to smudge fingerprints; he offered no explanation of how he had paid for drinks at the lounge without a wallet, or as to how he had planned to retrieve his car or get home from the salon. He further testified that the explosion occurred just after he had entered the front door and relocked it, and that the fire had come under the front door following a "trailer" of gasoline allegedly sloshed on the sidewalk. Appellant contended that display at trial of the scars on his torso and legs would corroborate his claim that the fire had come from the direction of the front door rather than of the "trailers" and the gasoline cans. He asserted that he was in no financial difficulty and that to the contrary, the business had just "turned the corner." Evidence on this last point was ambiguous.
The state, on the other hand, contended that an accomplice, presumably the named friend who did not testify, had driven Wilbanks to the rear of the building; that they had carried the gasoline cans in through the back door; that Wilbanks had remained inside to "slosh" the gasoline around and otherwise ready the premises for the fire; and that a pilot light on a gas water heater had ignited the gasoline fumes prematurely, trapping Wilbanks inside the locked building. The motive, according to the state, was that appellant wished to divest himself of a losing business and to collect on his property and loss of business insurance policies, the dollar limits of which he had raised only a few weeks earlier. Held:
*878 1. Appellant's enumeration of the general grounds (#6) is without merit. It is the function of the appellate court not to determine the weight of the evidence but to determine that there is sufficient evidence to enable a reasonable trier of fact to reach the verdict rendered. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Crawford v. State, 245 Ga. 89 (263 SE2d 131) (1980). In the instant case sufficient evidence was introduced at trial to authorize a reasonable jury to find the defendant guilty beyond a reasonable doubt of the offense charged.
2. As a corollary of the conclusion reached in the first division of this opinion, there was insufficient evidence to demand a directed verdict of acquittal. OCGA §§ 9-11-50, 17-9-1 (Code Ann. §§ 81A-150, 27-1802); Barnes v. State, 245 Ga. 609, 610 (266 SE2d 212) (1980); Daniels v. State, 158 Ga. App. 476, 477 (282 SE2d 118) (1981). Appellant's seventh enumeration is therefore without merit.
3. Appellant's fourth and fifth enumerations deal with allegedly prejudicial jury instructions. Appellant's assertion that the court should have given a supplemental instruction on the quantum of evidence required for conviction on circumstantial evidence in connection with the jury's request for clarification of the meaning of "reasonable doubt" has no merit in that the court has no duty per se to give a requested instruction in the words, or at the specific behest, of counsel when the same matter is fairly, accurately, and adequately covered elsewhere in the court's charge as a whole. Hand v. Hand, 244 Ga. 41 (257 SE2d 507) (1979); Watkins v. Davis, 152 Ga. App. 735 (263 SE2d 704) (1979). In the instant case the court had already fully instructed on this point. Moreover, the supplemental charge on reasonable doubt was extremely clear and comprehensive. As to the allegedly prejudicial "Allen charge," or "dynamite charge," the court below charged the jury in words that closely paraphrase the instruction approved in Allen v. United States, 164 U. S. 492 (17 SC 154, 41 LE 528) (1896). The Supreme Court of this state has repeatedly upheld the utilization of such a charge. Anderson v. State, 247 Ga. 397, 400 (276 SE2d 603) (1981). This enumeration, too, is without merit.
4. Appellant's enumeration as error of the court's exclusion of demonstrative evidence of the burn scars on his body (#1) and the related enumeration (#2) of the court's denial of appellant's motion for mistrial predicated on this exclusion are also without merit. The trial court has broad discretion as to admitting or excluding proffered evidence. Baker v. State, 246 Ga. 317 (271 SE2d 360) (1980). The Georgia rule favors admission of any relevant evidence, Sprouse v. State, 242 Ga. 831 (252 SE2d 173) (1977), and relevant evidence is defined as that which "renders the desired inference more probable *879 than it would be without the evidence." Patterson v. State, 233 Ga. 724, 725 (213 SE2d 612) (1975); Baker v. State, supra. See also Agnor's Georgia Evidence, § 10-2, p. 165. While in the instant case the scars would have been relevant to appellant's defense, the jury might equally well have drawn the desired inference from appellant's oral testimony; display of the burn scars would have been merely cumulative. Where the proffered evidence is cumulative of other evidence from which the jury might or might not draw a certain inference, to exclude that evidence is not error. Jackson v. State, 143 Ga. App. 734 (240 SE2d 180) (1977). Moreover, even if the exclusion were deemed error, we do not find it "highly probable," in light of the other evidence in the case, that such error would have contributed to appellant's conviction. Johnson v. State, 238 Ga. 59 (230 SE2d 869) (1976). Neither this enumeration nor its corollary, appellant's initial motion for mistrial (#2), constitutes grounds for reversal of the judgment.
5. Appellant's remaining enumerations challenge the propriety of certain remarks of the prosecutor and the denial of appellant's motions for mistrial based on objections to these remarks. We find that certain ones of the remarks to which appellant objects do indeed press the limits of propriety, and some of them might arguably be said to exceed those bounds. In Hoerner v. State, 246 Ga. 374, 375 (271 SE2d 458) (1980), the Supreme Court of this state held: "While a district attorney may draw conclusions from facts proven, `(i)t is improper for the district attorney to urge his personal belief ... as to the defendant's guilt ...' [cit.]," as the prosecutor did in the instant case. Our courts have also held it improper for a prosecuting attorney to state his personal opinion regarding the veracity of witnesses, as was done in this case. See Shirley v. State, 245 Ga. 616 (266 SE2d 218) (1980), cert. denied 449 U. S. 879 (101 SC 227, 66 LE2d 102) (1980).
Such improprieties constitute reversible error, however, only if the court condones them and takes no action to prevent harm's ensuing from them. Kelley v. State, 248 Ga. 133 (281 SE2d 589) (1981); Iler v. State, 139 Ga. App. 743 (229 SE2d 543) (1976). In the instant case study of the record reveals that the court sustained appellant's objections to those prosecutors remarks which in his sound discretion he deemed potentially prejudicial, and on several occasions rebuked the prosecutor in the presence of the jury. See OCGA §§ 9-10-185, 17-8-75 (Code Ann. § 81-1009); Watkins v. State, 160 Ga. App. 9 (285 SE2d 758) (1981). Moreover, we find no great probability that the improper remarks contributed to the verdict of guilty. Johnson v. State, supra. These enumerations are therefore also without merit.
*880 Finding no reversible error, we affirm the judgment below.
Judgment affirmed. Banke, J., concurs. Carley, J., concurs in Divisions 1, 2, 3 and 5 and in the judgment.
NOTES
[1]  On the Saturday night preceding the May 4 fire a report was made of persons pouring what appeared to be gasoline around the outside of the building and running away when they discovered they were observed. On the following Monday morning when an employee reported for work, she found the front door jammed in an unlocked position with a cloth stuffed between the lock and strike plate, and gasoline stains and fumes on the carpet just inside the front door. Officials were uncertain as to whether these constituted separate incidents or whether officers investigating the Saturday incident had failed to observe that the front door was not secured.