ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Joel C. Wieneke                                           Gregory F. Zoeller
Cara Schaefer Wieneke                                     Attorney General of Indiana
Wieneke Law Office, LLC
Plainfield, Indiana                                       Jodi Kathryn Stein
                                                          Deputy Attorney General

                                                          Kelly A. Miklos
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana

______________________________________________________________________________

                                            In the
                             Indiana Supreme Court                        DEC 19 2013, 9:09 am
                             _________________________________

                                    No. 20S00-1206-LW-560

TYRICE J. HALLIBURTON,
                                                          Appellant (Defendant below),

                                               v.

STATE OF INDIANA,
                                                       Appellee (Plaintiff below).
                             _________________________________

                   Appeal from the Elkhart Circuit Court, No. 20C01-1101-MR-1
                            The Honorable Terry C. Shewmaker, Judge
                             _________________________________

                On Direct Appeal Pursuant to Indiana Appellate Rule 4(A)(1)(a)
                           _________________________________

                                      December 19, 2013

Rucker, Justice.
       The State charged Tyrice J. Halliburton with murder and alleged he was a habitual
offender.   The State also sought life imprisonment without parole.           After a trial by jury
Halliburton was found guilty as charged and the jury recommended life imprisonment.
Following this recommendation, the trial court sentenced Halliburton accordingly. He now
appeals contending the trial court erred in admitting certain evidence and gave the jury an
erroneous limiting instruction. We affirm the judgment of the trial court.

                                  Facts and Procedural History

       On March 18, 2008, responding to a 911 call, police discovered the lifeless body of
Sheena Kiska in her apartment in Bristol, Indiana. The base of her skull was fractured, a stab
wound of great force had gone through a rib and organs, and a knife wound had severed her
carotid artery as well as the jugular veins on both sides of her neck. In all, Kiska had received
more than fifty stab wounds. Multiple bloody knives were found in the apartment, and blood
splatters, smears, and droplets were abundant in the apartment. Two days later officers returned
to the apartment to conduct further investigation but were unable to gain entry because other
officers had changed the lock on the door for security reasons. Halliburton, who lived in the
apartment next door, observed the officers having difficulty entering Kiska’s residence and
retrieved a tool from his own apartment that appeared to be “a little screwdriver that kind of
ha[d] a bend on the top of it.” Tr. at 225. With the officers’ permission, Halliburton used the
screwdriver to unlock the door in a manner the officers “had never seen” before. Tr. at 225.

       Halliburton was interviewed by the police three different times in the days following
Kiska’s death. During the first and second interviews, Halliburton stated that he left for a
veterinary appointment at 1:15 the afternoon of the killing but claimed to have seen Kiska and
her daughter standing outside by a white truck when he left.           During the third interview,
Halliburton initially began by reiterating his prior story but then offered a different account of
what he had seen that day. During this interview, Halliburton claimed that he saw another
resident in the hallway exiting Kiska’s apartment as he was leaving for the veterinarian. He
further declared that he heard noises coming from Kiska’s apartment at which point he “propped
the door just a little bit,” Tr. at 420, and “saw [the resident] in there cutting her up.” Tr. at 421.

                                                  2
Halliburton described the layout of Kiska’s apartment and was “[v]ery detailed” about where the
furniture was located and where the attack occurred. Tr. at 426. He identified the exact
locations of where she had been stabbed and said that Kiska’s face looked like “a piece of meat.”
Tr. at 429. Halliburton also said that Kiska had been attacked because “she came in at the wrong
time.” Tr. at 431. After the interview, the investigating officer tried to confirm Halliburton’s
claim with respect to where he said he had been standing when he peered through Kiska’s door
and purportedly witnessed the attack. However, the officer determined that it would have been
physically impossible for Halliburton to have seen the attack from a crack in the door; instead he
had to have been at least “two to three feet” inside the apartment. Tr. at 433. Around this same
time officers recovered from Halliburton’s car a DVD player that had been taken from Kiska’s
apartment about a month earlier.

       The investigation continued, and in August 2010, Halliburton sent a letter to the police
saying, “I want to clear [the resident’s] name. I didn’t really see him doing it.” Tr. at 433-34. In
January 2011, the State charged Halliburton with murder. Alleging he committed the murder by
intentionally killing the victim while committing or attempting to commit burglary—pursuant to
Indiana Code section 35-50-2-9(b)(1)(B)—the State filed an amended information in January
2012 seeking life imprisonment without parole. The State also charged Halliburton as a habitual
offender.

       Trial began April 16, 2012. During the guilt phase, testimony largely from State’s
witness Nicole DeFronzo revealed that in early 2008 she and her then-boyfriend Halliburton
lived together in an apartment next door to Kiska. On March 18, 2008, Halliburton took his cat
to a veterinary appointment where he had arranged to meet DeFronzo.               Halliburton told
DeFronzo that he had entered Kiska’s apartment when she was not there. However, Kiska came
home unexpectedly, and a struggle ensued resulting in her brutal death. More precisely,
according to DeFronzo, Halliburton told her that when Kiska came home, “he didn’t want to get
caught so he killed her.” Tr. at 523. Halliburton left Kiska’s apartment and changed his bloody
clothes. DeFronzo helped dispose of the clothes and they drove to the home of DeFronzo’s
mother, a registered nurse, who bandaged a wound on Halliburton’s hand. For over three years

                                                 3
DeFronzo did not reveal to anyone what Halliburton had told her about Kiska’s death. Nor had
she revealed her own complicity in helping get rid of evidence.

        During trial the State introduced numerous exhibits including photographs of the crime
scene, pre and post autopsy photographs, and a rib bone of the victim that had been removed
during autopsy. The State also introduced evidence that Halliburton had committed a burglary of
Kiska’s apartment approximately a month prior to the killing; and for which the trial court gave a
limiting instruction. Further the State called DeFronzo’s mother as a witness who testified,
among other things, that she had counseled her daughter to come forward with what she knew
and “to tell the truth.” Tr. at 484.

        The jury found Halliburton guilty of murder as charged. At the penalty phase of trial, the
jury recommended life imprisonment without parole. And thereafter Halliburton admitted to
being a habitual offender. Following a sentencing hearing the trial court sentenced Halliburton
consistent with the jury’s recommendation. 1 Halliburton seeks review raising four claims of
error which we rephrase as the following two: (1) did the trial court err in admitting certain
evidence, and (2) was the trial court’s limiting instruction erroneous.                Pursuant to Indiana
Appellate Rule 4(A)(1)(a) this Court has mandatory and exclusive jurisdiction over this appeal.
Additional relevant facts are set forth below.

1
  The record is silent on the disposition of Halliburton’s habitual offender adjudication. The trial court
noted: “If I were called upon to impose a term of [years] it would be 65 for the murder and 30 for the
habitual, consecutive to each other for a total sentence of 95 years; but that’s not the situation here. . . .”
Tr. at 800. It is unclear whether the trial court took the position that it would be redundant and
unnecessary to enhance Halliburton’s life without parole sentence or whether the trial court was under the
impression that it was prohibited from doing so. On this latter point we observe there is no statutory bar
to enhancing a sentence of life without parole with a term of years for a habitual offender adjudication.
The express language of the habitual offender statute provides in pertinent part: “The court shall sentence
a person found to be a habitual offender to an additional fixed term . . . .” I.C. § 35-50-2-8(h) (emphasis
added). And in a slightly different context trial courts routinely impose sentences of life without parole
along with a consecutive term of years. See, e.g., Turner v. State, 953 N.E.2d 1039, 1045 (Ind. 2011)
(defendant sentenced to life without parole plus eighty-eight years upon convictions for murder, robbery,
burglary, and seven counts of criminal confinement); Treadway v. State, 924 N.E.2d 621, 626-27 (Ind.
2010) (defendant sentenced to life without parole plus twenty years upon convictions for murder and
robbery); see also Ward v. State, 903 N.E.2d 946, 950 n.4 (Ind. 2009) (defendant sentenced to death plus
fifty years upon convictions for murder and rape). In any event the State did not object to the trial court’s
sentencing order and makes no claim in this regard on appeal. Thus error, if any, is waived.

                                                      4
                                            Discussion

                                  I.   Admission of Evidence

       Halliburton alleges the trial court erred in admitting the following: various pre and post
autopsy photographs, purported bad acts evidence of Halliburton’s prior involvement in a
burglary at the victim’s home, and alleged vouching testimony from one of the State’s witnesses.
“A trial court has broad discretion in ruling on the admissibility of evidence and we will disturb
its rulings only where it is shown that the court abused that discretion.” Turner, 953 N.E.2d at
1045. “An abuse of discretion occurs when the trial court’s decision is clearly against the logic
and effect of the facts and circumstances before it.” Id.

A. Admission of Photographs

       The trial court admitted into evidence exhibits which Halliburton characterizes as “27
gruesome photographs depicting all or part of Kiska’s body after her murder.” Br. of Appellant
at 8-9 (emphasis in original). However, Halliburton objected only to five of these photographs:
State’s Exhibits 11, 12, 68, 76, and 77. Thus we examine whether the trial court abused its
discretion in admitting these five exhibits over Halliburton’s objection. As for the remaining
photographs, Halliburton has the burden of demonstrating that their admission amounted to
fundamental error.

       State’s Exhibits 11 and 12 show two different angles of Kiska’s body as seen by the
investigating officer when he arrived on the crime scene. In both photographs the face of the
body is covered in blood and there are apparent knife wounds to the neck. Halliburton objected
to their admission into evidence on grounds they “[would inflame] the passions of the jury, and
that [they] would be highly prejudicial to be admitted.” Tr. at 79, 82.

       “[G]enerally, photographs depicting the crime scene and victim’s body are admissible as
long as they are relevant and competent aids to the jury.” Woods v. State, 677 N.E.2d 499, 504
(Ind. 1997).   In this appeal Halliburton does not contend the photographs were irrelevant.
Instead he makes the more general claim that the exhibits are “gruesome” and serve to “inflame[]

                                                 5
the emotions of the jury.” Br. of Appellant at 6-7. We would agree that these two photographs
depicting the victim’s blood-stained face are at least graphic if not gruesome. But “[e]ven gory
and revolting photographs may be admissible as long as they are relevant to some material issue
or show scenes that a witness could describe orally.” 2 Amburgey v. State, 696 N.E.2d 44, 45
(Ind. 1998) (emphasis added). Further, “[a]lthough a photograph may arouse the passions of the
jurors, it is admissible unless ‘its probative value is substantially outweighed by the danger of
unfair prejudice.’” Cutter v. State, 725 N.E.2d 401, 406 (Ind. 2000) (internal citations omitted).

        In this case the record shows that Michael Swallow—Chief of Police of the Bristol Police
Department—was the first officer to arrive on the crime scene and one of the officers who first
entered Kiska’s apartment. Chief Swallow testified to the state of the apartment as he found it
and the condition and location of Kiska’s bloodied body on the living room floor. He observed
“a large amount of what appeared to be blood in the vicinity of the body”—“between the body
and the door, and then right with the body as well.” Tr. at 61, 62. Two bloody knives were
visible at the scene—one lying in the hallway area and another in close proximity to Kiska’s
body. He also described the extent of the wounds that he observed on Kiska’s neck and face.
Chief Swallow testified that the State’s Exhibits 11 and 12 accurately represented his
observations on the day Kiska was killed. Because the photographs depicted the very scene that
the witness described in his testimony, because Halliburton does not contend the photographs
were irrelevant or immaterial, and because he has not demonstrated their probative value was
substantially outweighed by the danger of unfair prejudice, we conclude the trial court did not
abuse its discretion by admitting the exhibits into evidence.

        Exhibits 68, 76, and 77 are autopsy photographs showing the victim’s neck and the skin
pulled away from the victim’s skull. Halliburton objected to the admission of these exhibits into
evidence on the same ground that he objected to Exhibits 11 and 12, namely, they “[would

2
  Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to
the determination of the action more probable or less probable than it would be without the evidence.”
Ind. Evidence Rule 401. Evidence is material “if there is a reasonable likelihood that it might have
affected the outcome of the trial.” Samaniego v. State, 679 N.E.2d 944, 948 (Ind. Ct. App. 1997), trans.
denied.

                                                    6
inflame] the passions of the jury, and that [they] would be highly prejudicial to be admitted.”3
Tr. at 79, 82.     In this appeal Halliburton acknowledges this Court has held that autopsy
photographs of a victim “are relevant not only to prove his or her identity, but serve as an aid to
understanding the pathologist’s findings on the cause of death.” Br. of Appellant at 10 (quoting
Woods, 677 N.E.2d at 504). But he then appears to contend that because there was no dispute
concerning Kiska’s identity and cause of death the exhibits were inadmissible. 4 Id. This
argument fails. A claim similar to the one Halliburton makes here was made and rejected in
Butler v. State, 647 N.E.2d 631 (Ind. 1995). In that case the defendant argued the trial court
erroneously admitted into evidence autopsy photographs and a videotape of the crime scene
because the cause of death was not at issue and thus “the only other possible purpose in
introducing the photographs was to inflame the emotions of the jurors.” Id. at 633. In rejecting
this argument the Court observed: “[T]here is no rule limiting the facts in issue when one party
unilaterally concedes or offers to stipulate that a fact be taken as proved.” Id. at 634. Instead,
we concluded: “In a homicide case, the identity of the alleged victim and the assailant, the injury
to the alleged victim and its source, the death of the alleged victim and its cause, and the physical
surroundings in which the injury and death occurred, would all be facts of consequence in the
determination of guilt of the accused.” Id. We reach the same conclusion here.

        Further we have acknowledged that autopsy photographs often present unique problems
because the pathologist has manipulated the body in some way during the autopsy. Corbett v.
State, 764 N.E.2d 622, 627 (Ind. 2002). And autopsy photographs are generally inadmissible if
they show the body in an altered condition. Id. However, “there are situations where some
alteration of the body is allowed where necessary to demonstrate the testimony being given.”

3
  Halliburton’s objection to Exhibits 68, 76, and 77 was actually made to the bench outside the hearing of
the jury. However, the trial court declared: “The record reflects essentially the same objection that he’s
making now that was made specifically on Exhibits 11 and 12.” Tr. at 277. To which counsel responded:
“Correct, sir.” Tr. at 277. The trial court continued, “[a]nd you’re reiterating the same objection” and
counsel replied, “[y]es, sir.” Tr. at 277.
4
  We say “appears to contend” because Halliburton does not specifically focus on Exhibits 68, 76, and 77.
Instead Halliburton includes these exhibits with his argument concerning the twenty-two other exhibits
admitted into evidence and to which he expressly declared, “no objection” or “I have no objection.” See
Tr. at 78, 79 (Exhibit 10); Tr. at 129 (Exhibit 15); Tr. at 138 (Exhibit 26); Tr. at 159 (Exhibit 32); Tr. at
170 (Exhibit 37); Tr. at 276 (Exhibits 64, 65, 69, 70, 72 and 75); Tr. at 293 (Exhibits 80 through 84); Tr.
at 302 (Exhibits 88 through 91, and 94 through 96).

                                                     7
Swingley v. State, 739 N.E.2d 132, 134 (Ind. 2000). For example in Fentress v. State, 702
N.E.2d 721, 722 (Ind. 1998), we held admissible two photographs that depicted the victim’s
skull with the hair and skin pulled away from it. Because the pathologist had explained what he
had done and the alteration was necessary to determine the extent of the victim’s injuries, we
found that the “potential for confusion [was] minimal” and that the probative value outweighed
the prejudicial effect. Id. at 722. The same is true in the case before us.

       The record shows that forensic pathologist, Dr. Joseph Prahlow, conducted the autopsy
on Kiska’s body. He concluded that the cause of her death was “multiple sharp force injuries.”
Tr. at 309. During the course of his testimony Dr. Prahlow stated that the blunt force injuries to
Kiska’s head would be difficult to determine without an internal examination, partially because
of the victim’s hair. To that end, he explained that during the internal examination, he peeled
Kiska’s scalp away from the skull to allow him to see “bruises of the scalp area, most of which
are distinct from and not associated with any sharp force injuries.” Tr. at 271. He pointed out
these bruises in Exhibit no. 68. Dr. Prahlow explained that during the internal examination the
skull and brain are removed after the scalp has been peeled back, which allows him to see the
base of the skull. It was at this point that he was able to discover the fracture to the skull caused
by a stab wound to Kiska’s right cheek. This fracture is illuminated in Exhibit no. 76. Finally,
Dr. Prahlow testified that Exhibit no. 77 is a close-up version of the fracture to Kiska’s skull and
this photograph shows a probe inserted into the skull in order to point directly to the location of
the fracture. We conclude the trial court did not abuse its discretion by admitting into evidence
State’s Exhibits 68, 76, and 77.

       With respect to the remaining twenty-two photographs about which he now complains,
Halliburton concedes that he did not object to these exhibits at trial. Halliburton thus asserts that
their admission “constituted fundamental error.” Br. of Appellant at 9.

       “Failure to object at trial waives the issue for review unless fundamental error occurred.”
Treadway v. State, 924 N.E.2d 621, 633 (Ind. 2010). The fundamental error doctrine is an
exception to the general rule that the failure to object at trial constitutes procedural default

                                                  8
precluding consideration of the issue on appeal. See Benson v. State, 762 N.E.2d 748, 755 (Ind.
2002). We have elaborated on the underlying rationale for this exception:
               There are very strong reasons to require objections at trial to
               preserve error. Important among them is that the trial court can
               often correct an error if it is called to the court’s attention. This can
               result in enormous savings in time, effort and expense to the
               parties and the court, including avoiding an appeal and retrial.
               Moreover, if matters can be heard on appeal despite failure to
               object at trial, parties detecting such an error may be encouraged to
               take their chances on the result in the trial court despite the error,
               secure in the knowledge that a retrial is available. Despite these
               considerations, the doctrine of fundamental error has been invoked
               to ensure failure to object where appellate courts have found an
               error to be sufficiently egregious.

State v. Daniels, 680 N.E.2d 829, 835 (Ind. 1997). Hence, “[t]he ‘fundamental error’ exception
is extremely narrow, and applies only when the error constitutes a blatant violation of basic
principles, the harm or potential for harm is substantial, and the resulting error denies the
defendant fundamental due process.” Mathews v. State, 849 N.E.2d 578, 587 (Ind. 2006). “The
error claimed must either make a fair trial impossible or constitute clearly blatant violations of
basic and elementary principles of due process.” Brown v. State, 929 N.E.2d 204, 207 (Ind.
2010) (internal quotation omitted).          “This exception is available only in egregious
circumstances.” Id. (internal quotation omitted).

       Concerning the twenty-two photographs at issue, we make the following observations.
First, at trial Halliburton did not simply “fail” to object to the exhibits. Instead, on eight separate
occasions over the course of a five-day trial during which the State offered the exhibits for
admission into evidence, and after inquiry by the trial court, Halliburton expressly said “no
objection” or “I have no objection.” See n.4. “The appellant cannot on the one hand state at trial
that he has no objection to the admission of evidence and thereafter in this Court claim such
admission to be erroneous.” Harrison v. State, 281 N.E.2d 98, 100 (Ind. 1972). Further, the
doctrine of fundamental error is inapplicable to the circumstances presented here. The doctrine
presupposes the trial judge erred in performing some duty that the law had charged the judge
with performing sua sponte. Presumably a trial judge is aware of her own sua sponte duties. But
upon an express declaration of “no objection” a trial judge has no duty to determine which

                                                  9
exhibits a party decides, for whatever strategic reasons, to allow into evidence. “[O]nly the
interested party himself can really know whether the introduction or exclusion of a particular
piece of evidence is in his own best interests.” Winston v. State, 332 N.E.2d 229, 233 (Ind. Ct.
App. 1975).

        Second, other than repeating the refrain that the exhibits were “gruesome,” see
Appellant’s Br. at 3, 6, 8, 9, 10, 11, Halliburton offers no explanation as to how their alleged
erroneous admission made a fair trial impossible or constituted clearly blatant violations of basic
and elementary principles of due process. See Brown, 929 N.E.2d at 207. Finally, all of the
exhibits about which Halliburton complains were either photographs of the crime scene from
various angles which aided the testimony of the on-the-scene investigating officers, or autopsy
photographs, which the pathologist relied upon during his trial testimony. We conclude the trial
court committed no error, let alone fundamental error, by admitting these photographs into
evidence. 5

B. Purported Vouching Testimony

        Next Halliburton complains of error in the introduction of testimony from state’s witness
Cynthia Bollenbaugh—DeFronzo’s mother. Acknowledging he did not object to Bollenbaugh’s
testimony, Halliburton again invokes the doctrine of fundamental error. And again we repeat the
fundamental error doctrine is an exception to the general rule that the failure to object at trial
constitutes procedural default precluding consideration of the issue on appeal. Benson, 762
N.E.2d at 755.      “[This] exception is extremely narrow, and applies only when the error
constitutes a blatant violation of basic principles, the harm or potential for harm is substantial,

5
  Halliburton also asserts fundamental error with respect to the admission into evidence of State’s Exhibit
54—a container holding “two pieces of bone” identified as the victim’s “fourth rib.” Tr. at 214. As with
the now challenged twenty-two photographs, Halliburton also said, “[n]o objection, your honor” when the
exhibit was introduced. Tr. at 217. However there is no indication in the record before us demonstrating
this exhibit was ever shown to the jury. The State specifically moved to “defer publication at this time on
[Exhibit 54].” And the trial court ruled: “Publication of Exhibit 54 . . . will occur, if requested, without
objection.” Tr. at 217. Our review of the record does not reveal that the State ever requested publication,
and there is no other reference to Exhibit 54 in the trial transcript. Indeed, neither the physical exhibit
itself nor a photograph of the exhibit appears in the record before us. Thus error, if any there be, is
harmless.

                                                    10
and the resulting error denies the defendant fundamental due process.” Mathews, 849 N.E.2d at
587. The error claimed “must either make a fair trial impossible or constitute clearly blatant
violations of basic and elementary principles of due process.” Brown, 929 N.E.2d at 207
(internal quotation omitted). This exception is available only in egregious circumstances. Id.

       Indiana Evidence Rule 704(b) provides: “Witnesses may not testify to opinions
concerning intent, guilt, or innocence in a criminal case; the truth or falsity of allegations;
whether a witness has testified truthfully; or legal conclusions.” (emphasis added). And this
Court has held, “[n]o witness, whether lay or expert, is competent to testify that another witness
is or is not telling the truth.” Hoglund, 962 N.E.2d 1230, 1238 (Ind. 2012) (alteration in original)
(quoting Barger v. State, 587 N.E.2d 1304, 1308 (Ind. 1992) (quotation omitted)); Shepherd v.
State, 538 N.E.2d 242, 243 (Ind. 1989). But our holding in this regard relates to the proffered
testimony at trial. According to Halliburton “testimony from DeFronzo’s mother . . . served no
other purpose than to impermissibly vouch for DeFronzo’s credibility, thereby giving
DeFronzo’s testimony a prejudicial impact that obliterated Halliburton’s opportunity to receive a
fair trial.” Br. of Appellant at 22. The essential facts are these.

       Bollenbaugh testified that sometime around 3:30 p.m. on March 18, 2008 Halliburton and
her daughter DeFronzo came over to her house after returning from an appointment with a
veterinarian.   Asserting that Halliburton “had suffered a cat scratch” DeFronzo asked her
mother—a registered nurse—to look at the injury. Tr. at 474. Bollenbaugh did so, noted that “it
looked like to me a puncture wound,” Tr. at 476, cleaned the wound and dressed it. The couple
left the house after about an hour. A few minutes later DeFronzo called her mother and told her
they “weren’t allowed to enter the apartment building. That there was something going on.” Tr.
at 478. Bollenbaugh later learned that someone had been killed in the apartment next door to her
daughter’s apartment. The State next inquired: “Did there come a point in time thereafter where
you had conversations with your daughter regarding the murder?” Tr. at 480. Bollenbaugh said,
“[y]es” and the following exchange occurred:

                [Q]: And did [DeFronzo] indicate to you and tell you what she
                knew about the murder of Sheena Kiska?

                                                  11
                   [A]:   Yes.

                   [Q]:   This was on December 25, Christmas day.
                   [A]:   Christmas day.

                   [Q]:   2011.

                   [A]:   Yes.

                   [Q]: And was that the first time that your daughter had told you
                   things that she knew about the murder of Sheena Kiska?

                   [A]:   Yes.

                   [Q]:   And once you were aware of these things, what did you do?

                   [A]:   I begged her to tell the truth.

                   [Q]:   Tell the truth to who?

                   [A]: To the law enforcement, to -- I said you cannot go up and
                   testify and lie. You cannot do it. I said you have to tell the truth.
                   It’s the right thing to do.

                   *      *       *

                   [Q]: So once she told you what she knew about the murder, she
                   was not interested in stepping forward and telling the truth at first.

                   [A]:   At first, yes.

                   [Q]: Did there come a point in time when you were able to
                   convince her otherwise?

                   [A]:   Yes.

Tr. at 483-84. 6

        “Indiana Evidence Rule 704(b) prohibits a witness from testifying about whether a
witness has testified truthfully.” Whedon v. State, 900 N.E.2d 498, 506 (Ind. Ct. App. 2009)
(emphasis added) (citation omitted), aff’d 905 N.E.2d 408 (Ind. 2009). The record makes clear

6
  Although Halliburton cites nearly three pages of testimony in his appellate brief, the thrust of his
argument is based primarily on the aforementioned colloquy.

                                                     12
that during Bollenbaugh’s testimony, she stated only what she told DeFronzo. Nowhere in the
record does Bollenbaugh claim DeFronzo’s testimony was truthful or even that the testimony
DeFronzo offered at trial was even consistent with what Bollenbaugh had previously been told.
In fact, with the agreement of the parties, the trial court permitted the State to lead the witness
during that portion of the examination undoubtedly to ensure that Bollenbaugh did not proffer
hearsay statements from her conversation with DeFronzo or any otherwise inadmissible
testimony. Even accepting that Bollenbaugh convinced her daughter “to tell the truth” “[t]o the
law enforcement,” Tr. at 484, the testimony elicited at trial never revealed comments declaring
what Bollenbaugh believed “the truth” to be. And most importantly Bollenbaugh never claimed
that DeFronzo’s testimony at trial was truthful. Contrary to Halliburton’s insistence that we
simply draw such an inference, our jurisprudence requires more. See, e.g., Bufkin v. State, 700
N.E.2d 1147, 1150 (Ind. 1998) (finding error when witness bolstered another witness’ testimony
by declaring that he found the witness to be “credible”); Head v. State, 519 N.E.2d 151, 153
(Ind. 1988) (concluding “it was entirely improper for [the State’s] witness to review each item of
the child’s testimony and to specifically vouch for the truthfulness of such testimony”). See also
Wilson v. United States, 149 F. Supp. 2d 1045, 1050 (N.D. Ind. 2001) (concluding that
“[witness’] testimony did not constitute improper vouching or bolstering because he did not
express a personal opinion as to [another witness’] credibility nor imply that evidence not before
the jury supported a finding that [defendant] was guilty”). On this issue we find no error,
fundamental or otherwise.

C. Evidence of Other Crimes

       For his last claim concerning the admission of evidence Halliburton asserts the trial court
erred in admitting evidence that he committed a burglary of Kiska’s apartment a few weeks
before she was killed contrary to Indiana Evidence Rule 404(b). The Rule provides:

               Evidence of other crimes, wrongs, or acts is not admissible to
               prove the character of a person in order to show action in
               conformity therewith. It may, however, be admissible for other
               purposes, such as proof of motive, intent, preparation, plan,
               knowledge, identity, or absence of mistake or accident, provided
               that upon request by the accused, the prosecution in a criminal case

                                                13
               shall provide reasonable notice in advance of trial, or during trial if
               the court excuses pre-trial notice on good cause shown, of the
               general nature of any such evidence it intends to introduce at trial.

Rule 404(b) “is designed to prevent the jury from making the ‘forbidden inference’ that prior
wrongful conduct suggests present guilt.” Byers v. State, 709 N.E.2d 1024, 1026-27 (Ind. 1999);
see also Bassett v. State, 795 N.E.2d 1050, 1053 (Ind. 2003) (noting the purpose behind Rule
404(b) is to “prevent[] the State from punishing people for their character, and evidence of
extrinsic offenses poses the danger that the jury will convict the defendant because . . . he has a
tendency to commit other crimes”) (internal quotation omitted). “In assessing the admissibility
of 404(b) evidence [the] trial court must: (1) determine that the evidence of other crimes,
wrongs, or acts is relevant to a matter at issue other than the defendant’s propensity to commit
the charged act and (2) balance the probative value of the evidence against its prejudicial effect
pursuant to Rule 403.” Wilson v. State, 765 N.E.2d 1265, 1270 (Ind. 2002) (quotation omitted).

       The facts supporting Halliburton’s claim are as follows. Prior to trial the State filed in
open court and served upon Halliburton its “Formal Notice Of State’s Intent To Use 404(b)
Evidence,” which included evidence that Halliburton committed a burglary of Kiska’s residence
on or about February 4, 2008. App. at 48.

       When the State first proceeded to introduce such evidence through the testimony of
investigating officer, Chief Deputy Mike Albin, counsel for Halliburton objected, and outside the
presence of the jury declared:

               I think that if information about a prior burglary comes in,
               combined with some of the testimony that we have heard or may
               hear in the future, that it will be highly prejudicial to Mr.
               Halliburton, and the jury will make an unfortunate and
               inappropriate or improper leap to conclude that Mr. Halliburton, in
               fact, committed the burglary in February; and therefore, was going
               to commit another burglary on March 18, 2008. I think it’s highly
               prejudicial.

Tr. at 240 (emphasis added). After entertaining arguments of counsel, the trial court ruled: “For
now at this point in the trial, the objection is sustained for this evidence to come through this
witness at this time.” Tr. at 246.

                                                 14
        Later during trial the State called DeFronzo as a witness. During the course of her
testimony the State asked whether she was “aware of whether or not Tyrice Halliburton had been
in . . . Sheena’s apartment before.” Tr. at 545. Counsel objected, the jury was excused, and
extensive arguments ensued, which included voir dire of DeFronzo. See Tr. at 546-54. At the
conclusion of which the trial court summarized events as follows: “Mr. [Halliburton’s Counsel]
first objected to Chief Deputy Albin’s testimony on the grounds that it was prejudicial and the
prejudice would outweigh the probative value as set forth in 404(b). Is that correct?” To which
counsel replied: “That’s correct, sir.” Tr. at 554-55 (emphasis added). The trial court continued:
“And you’re making that same objection, now, Mr. [Halliburton’s counsel], relative to Ms.
DeFronzo’s testimony that we just heard out of the jury’s presence?” Tr. at 555. To which
counsel replied: “That’s correct.” Tr. at 555. When counsel then proceeded to further elaborate,
the trial court interjected: “Well, that’s what I said. You’re saying it has some probative value,
but the prejudice outweighs the probative value.” Tr. at 555 (emphasis added). To which
counsel responded: “Yes. Yes. That’s my argument.” Tr. at 555. The trial court then gave a
lengthy recitation of why it thought the evidence was relevant, and why it would be admissible
for the limited purpose of proving motive, intent, preparation, plan, absence of mistake or fact.
See Tr. at 556-58. The trial court ultimately concluded: “I think the probative value outweighs
the prejudice . . . .” Tr. at 558.

        Although counsel for Halliburton objected to the admission of the evidence, the trial
court declared: “If the defendant wants a limiting instruction, I will give it. That’s a yes. You
shook your head.” Tr. at 558. To which counsel replied: “That would be a yes, sir.” Tr. at 558.
After the jury returned the trial court gave a limiting instruction that we will discuss below in
Part II. DeFronzo continued her testimony and recounted that in February 2008, Halliburton
entered Kiska’s home without her permission or consent, told DeFronzo about the incident, and
showed her the items he had taken including a laptop computer, a camcorder, a lock box with
cash in it, and a DVD player. Halliburton did not tell DeFronzo how he gained entry.

        In this appeal, Halliburton argues the trial court erred in admitting evidence of the
burglary because “the prior burglary did not fit within one of the rule 404(b) exceptions as it
related to the only charge Halliburton was facing in this case: intentional murder.” Br. of

                                               15
Appellant at 14. According to Halliburton “[b]ecause evidence of the prior burglary constituted
bad character evidence and was not admissible under any of the exceptions listed in Rule 404(b),
the trial court improperly admitted it into evidence.” Br. of Appellant at 17.

        The law in Indiana is well settled that “a defendant may not argue one ground for
objection at trial and then raise new grounds on appeal.” Turner, 953 N.E.2d at 1058 (quoting
Gill v. State, 730 N.E.2d 709, 711 (Ind. 2000)). As above recited, at trial Halliburton objected to
testimony concerning the prior burglary on grounds that its probative value was outweighed by
its prejudicial impact. Essentially Halliburton’s objection was based not on Rule 404 but Rule
403 which declares in pertinent part: “Although relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger of unfair prejudice . . . .” Halliburton
made no claim at trial that evidence of the burglary did not fit any of the 404(b) exceptions; nor
did he contend at trial that evidence of the burglary was bad character evidence prohibited by
Rule 404(b). Accordingly Halliburton has waived this claim of error for appellate review. 7 See
Gill, 730 N.E.2d at 711.

                                      II. Limiting Instructions

        As indicated above, before DeFronzo resumed her testimony, at Halliburton’s request the
trial court gave the jury a limiting instruction. Halliburton now contends the instruction was
“improper.” Br. of Appellant at 20. However, Halliburton did not object to the instruction. And
“[n]othing is preserved on appeal where a defendant fails to object to a limiting instruction.”
Stahl v. State, 616 N.E.2d 9, 13 (Ind. 1993). Thus, as with most of Halliburton’s claims we view
this issue also through the lens of fundamental error.

7
  Assuming for the sake of argument that evidence of the burglary was inadmissible character evidence,
and as Halliburton contends, does not fit within any of the Rule 404(b) exceptions, he still has failed to
show how introduction of the evidence amounted to fundamental error. The evidence supporting the
jury’s guilty of murder verdict was overwhelming. Indeed Halliburton makes no claim challenging the
sufficiency of the evidence. Where evidence of guilt is overwhelming any error in the admission of
evidence is not fundamental. See Sobolewski v. State, 889 N.E.2d 849, 858 (Ind. Ct. App. 2008) (finding
“harmless” and not “fundamental” any error in the State’s use of Defendant’s silence “given the
overwhelming evidence offered to impeach [the Defendant] as well as the evidence of his guilt.”), trans.
denied.

                                                   16
        The instruction at issue declared:

                You’re about to hear evidence that is being offered for a limited
                purpose. The evidence that you are about to hear is not being
                offered to prove the character of any person. It is offered for the
                limited purpose of establishing proof of motive, intent, preparation,
                plan, knowledge, identity, or absence of mistake or accident. It’s
                admissible for that limited purpose because I have ruled that is
                relevant, and the probative value outweighs any prejudice there
                may be. The evidence, as I said, is being admitted for this limited
                purpose and for no other purpose.

Tr. at 559 (emphasis added). 8          Essentially focusing on the highlighted language of the
instruction, Halliburton contends the trial court improperly vouched for the credibility of the
evidence as well as commented on the weight the jury should give the evidence.

        It is mandatory for a trial court, upon request, to give a limiting instruction or an
admonishment where evidence is introduced for limited purposes. See Evid. R. 105 (“When
evidence which is admissible as to one party or for one purpose but not admissible as to another
party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its
proper scope and admonish the jury accordingly.”). However, we have long held that “an
instruction directed to the testimony of one witness erroneously invades the province of the jury
when the instruction intimates an opinion on the credibility of a witness or the weight to be given
to his testimony.” Pope v. State, 737 N.E.2d 374, 378 (Ind. 2000) (quoting Fox v. State, 497
N.E.2d 221, 225 (Ind. 1986); see also Taylor v. State, 278 N.E.2d 273, 275 (Ind. 1972) (“An
instruction in a criminal case is erroneous, as an invasion of the province of the jury, if it
intimates an opinion of the credibility of a witness or the weight to be given to his testimony.”).

        Here the instruction did not imply that the trial court had formed an opinion on the
credibility of a witness or the weight the jury was to give the witness’ testimony. However, the
instruction nonetheless advised the jury that the trial court had made a preliminary determination

8
 Later during trial the State recalled to the stand Chief Deputy Albin who testified, among other things,
about a DVD player that was taken in the February burglary and later recovered from Halliburton’s car.
Prior to his testimony on this point the trial court gave the jury a similar limiting instruction. See Tr. at
616-17. Again, Halliburton did not object.

                                                     17
that the testimony the jury was about to hear is “relevant” and that the trial court had made a
preliminary determination that the probative value of such testimony “outweighs any prejudice
there may be.” Tr. at 559. Although appropriate as an evidentiary ruling, the highlighted portion
of the limiting instruction should not have been read to the jury in that it had no role in the
matter. “The court and not the jury determines the admissibility of evidence, and the foundation
for the admission of secondary evidence is a matter alone for the court and not for the jury.”
Sprague v. State, 181 N.E. 507, 512 (Ind. 1932); Pritchard v. State, 230 N.E.2d 416, 417 (1967)
(“This being a criminal case, the determination of the admissibility of the evidence is a function
alone of the trial court . . . .” (citations omitted)). 9

          In the end we conclude the limiting instruction was given in error. However, Halliburton
makes no claim the error was fundamental. And we find no such error to have occurred.

                                                 Conclusion

          We affirm the judgment of the trial court.

Dickson, C.J., and David, Massa and Rush, JJ., concur.

9
    The Indiana Pattern Jury Instruction resolves this concern:
                   Evidence has been introduced that the Defendant was involved in
                   (crimes) (a crime) (wrongful conduct) (bad acts) other than (those) (that)
                   charged in the information. This evidence has been received solely on
                   the issue of Defendant’s (identity) (motive) (intent) (preparation) (plan)
                   (knowledge) (absence of mistake) (absence of accident) (sanity). This
                   evidence should be considered by you only for that limited purpose.
Indiana Pattern Jury Instructions – Criminal 12.17 (2013).
The Indiana Pattern Jury Instructions are prepared under the auspices of the Indiana Judges Association
and the Indiana Judicial Conference Criminal and Civil Instruction Committees. Although not formally
approved for use, they are tacitly recognized by Indiana Trial Rule 51(E).

                                                      18


             Case: 15-11491    Date Filed: 06/13/2016    Page: 1 of 14

                                                          [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 15-11491
                            Non-Argument Calendar
                          ________________________

                      D.C. Docket No. 2:10-cv-00141-SLB

GERALD N. LINDLEY,

                                                   Plaintiff-Appellee,

versus

BIRMINGHAM, CITY OF, ALABAMA,
a municipal corporation, et al.,

                                                   Defendants,

FREDIA L. TAYLOR,
Nurse; in her professional and official capacity as an employee
of the City of Birmingham and as a Nurse at the Birmingham City Jail,

                                                   Defendant-Appellant.

                          ________________________

                  Appeal from the United States District Court
                     for the Northern District of Alabama
                         ________________________

                                 (June 13, 2016)
              Case: 15-11491     Date Filed: 06/13/2016    Page: 2 of 14

Before MARTIN, JORDAN and JULIE CARNES, Circuit Judges.

PER CURIAM:

      Fredia Taylor appeals the district court’s denial of her motion for summary

judgment on Gerald Lindley’s 42 U.S.C. § 1983 deliberate indifference claim and

state-law negligence claim. Lindley’s claims arise out of his nine-day detention at

the Birmingham City Jail, where he alleges he was deprived of medical care for an

infection in his leg. In denying Taylor’s motion, the district court ruled that: (1)

the claims in Lindley’s amended complaint related back to his original complaint;

(2) Taylor was not entitled to qualified immunity on Lindley’s § 1983 claim; and

(3) Taylor was not entitled to state-law immunity on Lindley’s negligence claim.

We have jurisdiction over this interlocutory appeal because it concerns whether

Taylor is entitled to immunity as a matter of law. Moniz v. City of Fort

Lauderdale, 145 F.3d 1278, 1281 (11th Cir. 1998). After careful review, we

affirm.

                                           I.

      Federal Rule of Civil Procedure 15(c) governs when an amended complaint

“relates back” to original filings for statute of limitations purposes. We review a

district court’s application of Rule 15(c) for abuse of discretion. Powers v. Graff,

148 F.3d 1223, 1226 (11th Cir. 1998). An amended complaint that adds a party or

changes the name of a party “relates back” when: (1) the amendment “arose out of

                                           2
                Case: 15-11491       Date Filed: 06/13/2016       Page: 3 of 14

the conduct, transaction, or occurrence set out—or attempted to be set out—in the

original pleading”; and (2) within the 120-day period for service provided by Rule

4(m), the new party “received such notice of the action that it will not be

prejudiced in defending on the merits” and “knew or should have known that the

action would have been brought against it, but for a mistake concerning the proper

party’s identity.” Fed. R. Civ. P. 15(c)(1)(B), (C)(i)–(ii); see also Krupski v. Costa

Crociere S. p. A., 560 U.S. 538, 548, 130 S. Ct. 2485, 2493 (2010). Constructive

notice satisfies Rule 15(c)’s requirements and can be imputed to a new defendant

through her attorney if that attorney also represents the parties originally sued.

Kirk v. Cronvich, 629 F.2d 404, 407–408 (5th Cir. 1980),1 abrogated on other

grounds by Schiavone v. Fortune, AKA Time, Inc., 477 U.S. 21, 106 S. Ct. 2379

(1986).

       There is no question that Lindley’s amended claims arose out of the same

conduct set out in the original complaint. Taylor asserts, however, that she did not

have adequate notice “that [she] would have been named a defendant but for an

error.” Krupski, 560 U.S. at 548, 130 S. Ct. at 2493. But Lindley’s original

complaint named “Nurse Frida” as a defendant in addition to the Birmingham City

Jail and a number of Taylor’s coworkers there. The city attorney investigated the

1
 Decisions of the Fifth Circuit rendered prior to October 1, 1981, are binding on this Court. See
Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).

                                                3
              Case: 15-11491     Date Filed: 06/13/2016    Page: 4 of 14

incident and filed pleadings on behalf of other defendants named in the original

complaint. Once Lindley corrected Taylor’s name to “Nurse Fredia L. Taylor” in

his amended complaint, the city attorney undertook her representation as well. On

this record, the district court did not abuse its discretion by imputing notice of the

action to Taylor. See Kirk, 629 F.2d at 408. Because Taylor should have known

that she was not named in the original complaint due to an error, Lindley’s

amended complaint “relates back” and his claims against Taylor are not time-

barred.

                                          II.

      “We review de novo a district court’s denial of summary judgment based on

qualified immunity, applying the same legal standards that governed the district

court.” Feliciano v. City of Miami Beach, 707 F.3d 1244, 1247 (11th Cir. 2013).

Summary judgment is appropriate when “there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). In reviewing a denial of summary judgment, we are required to

“view the evidence and all factual inferences therefrom in the light most favorable

to the non-moving party, and resolve all reasonable doubts about the facts in favor

of the non-movant.” Skop v. City of Atlanta, 485 F.3d 1130, 1143 (11th Cir. 2007)

(quotation omitted).

                                           4
               Case: 15-11491       Date Filed: 06/13/2016     Page: 5 of 14

                                               A.

       Qualified immunity “protects public officials to some extent from lawsuits

against them in their individual capacities.” Goebert v. Lee Cty., 510 F.3d 1312,

1329 (11th Cir. 2007). To claim qualified immunity, a defendant must first

demonstrate that she was engaged in a discretionary duty. Mercado v. City of

Orlando, 407 F.3d 1152, 1156 (11th Cir. 2005). After that, the burden shifts to the

plaintiff to show that the defendant is not entitled to qualified immunity because

she violated a clearly established constitutional right. Holloman ex rel. Holloman

v. Harland, 370 F.3d 1252, 1264 (11th Cir. 2004). Because it is undisputed that

Taylor was engaged in a discretionary duty as a nurse at the jail, we consider

whether Lindley has overcome Taylor’s claim of qualified immunity.

                                              1.

       We first consider whether the facts, taken in the light most favorable to

Lindley, establish that Taylor violated a constitutional right. Deliberate

indifference to a pre-trial detainee’s serious medical needs is a violation of the

Fourteenth Amendment’s Due Process Clause. Lancaster v. Monroe Cty., 116

F.3d 1419, 1425 n.6 (11th Cir. 1997). 2 To establish deliberate indifference,

Lindley must prove: (1) an “objectively serious medical need”; and (2) that Taylor
2
  The Eighth Amendment’s Cruel and Unusual Punishment Clause governs deliberate
indifference claims by convicted prisoners. Goebert, 510 F.3d at 1326. Because the minimum
standards of medical care are the same under the Eighth and the Fourteenth Amendment, we
apply caselaw developed under both to Lindley’s claim. See Cook ex rel. Estate of Tessier v.
Sheriff of Monroe Cty., 402 F.3d 1092, 1115 (11th Cir. 2005).
                                              5
              Case: 15-11491    Date Filed: 06/13/2016    Page: 6 of 14

“acted with deliberate indifference to that need.” Brown v. Johnson, 387 F.3d

1344, 1351 (11th Cir. 2004).

      A serious medical need is “one that has been diagnosed by a physician as

mandating treatment or one that is so obvious that even a lay person would easily

recognize the necessity for a doctor’s attention.” Id. (quotation omitted). In either

case, “the medical need must be one that, if left unattended, poses a substantial risk

of serious harm.” Id. (quotation omitted).

      Lindley was arrested and booked into the City of Birmingham Jail on

January 24, 2008. According to Lindley’s affidavit, he began requesting treatment

on January 28 for a sore on his leg that was “highly inflamed” and “swollen.” The

condition of his leg worsened, and “it became too painful to raise [his] pants leg

over [his] knee.” He “would eat little if any food due to [his] fever and nausea.”

Lindley was scheduled to be transported to the Shelby County Jail on February 2,

2008, but the Shelby County deputies at first refused to move him and told

Birmingham Jail personnel that he needed immediate medical attention. By the

time he arrived at the Shelby County Jail that same day, Lindley “was unable to

walk under [his] own power.” The nurse who examined him upon arrival noted

that Lindley had an abscess with a “blackened center” and recommended

immediate medical attention. After processing, Lindley was transported directly to

the hospital, where he was diagnosed with a staph infection. He underwent two

                                          6
              Case: 15-11491    Date Filed: 06/13/2016    Page: 7 of 14

surgeries, leaving him with an open wound “from the top of [his] thigh to mid calf”

that took approximately ten months to heal.

      Taylor claims that Lindley did not meet his burden of establishing a serious

medical need because he “never deposed any doctors, nurses or other medical

personnel regarding [his] alleged [staph infection].” However, Lindley’s hospital

records describe a “staph infection in his [] lower extremity” that required the

removal of “[l]arge amounts of necrotic fascia.” Even if Lindley’s specific

diagnosis were not clear from his medical records, his affidavits establish that he

had a rapidly worsening infection whose severity should have been obvious to

trained nurses. In fact, the nurse who examined him at the Shelby County Jail

recommended immediate medical attention. In light of the foregoing, we agree

with the district court that Lindley has demonstrated a serious medical need.

      Lindley must also show that Taylor was deliberately indifferent to this

serious medical need. To satisfy this element, Lindley must prove that: (1) Taylor

had subjective knowledge of a risk of serious harm; (2) she disregarded that risk;

(3) by conduct that was more than gross negligence. Goebert, 510 F.3d at 1326–

27. Whether a defendant had subjective knowledge of the risk of serious harm is a

question of fact, which can be demonstrated by circumstantial evidence. Farmer v.

Brennan, 511 U.S. 825, 842, 114 S. Ct. 1970, 1981 (1994). In a case concerning a

delay in treatment, we decide whether the defendant’s conduct was more than

                                          7
              Case: 15-11491      Date Filed: 06/13/2016    Page: 8 of 14

gross negligence based on: “(1) the seriousness of the medical need; (2) whether

the delay worsened the medical condition; and (3) the reason for the delay.”

Goebert, 510 F.3d at 1327.

      Lindley “specifically recall[ed] reporting [his] medical need to Nurses

Fredia Taylor and Allinda Brown” and filling out medical request forms four times

a day between January 28 and February 2. During the week of January 28, he also

showed his knee, which was “clearly swollen, red and very warm to the touch,” to

Taylor and Brown. After it became too painful for Lindley to raise his pants over

his knee, he again “specifically remember[ed]” showing his infection to Taylor and

other jail staff. During the relevant time period, a “staff [sic] infection” is

mentioned three times in the ledger maintained by the jail. The entire time,

Lindley alleges that he was given only Tylenol to manage the pain.

      These allegations support the inference that Taylor had “subjective

knowledge of a risk of serious harm” and “disregard[ed] [] that risk.” Goebert, 510

F.3d at 1327. Lindley’s affidavit indicates that he showed his leg to Taylor in

serious enough condition that she should have provided prompt medical attention.

The fact that deputies and a nurse from Shelby County recognized the severity of

Lindley’s infection the same day he left the Birmingham Jail bolsters this

inference. Regarding whether Taylor’s conduct amounted to more than gross

negligence, Lindley’s hospital records indicate that he arrived with an “extensive

                                            8
              Case: 15-11491     Date Filed: 06/13/2016   Page: 9 of 14

infection of the right lower extremity, which was not responding to antibiotics.” A

reasonable jury could conclude that Taylor’s decision to offer no treatment besides

Tylenol for six days allowed the infection to worsen to the point that antibiotics

were no longer effective, leading to the extensive loss of tissue and skin. See

Goebert, 510 F.3d at 1327 (finding that a reasonable jury could conclude that a

delay in treatment caused the loss of the plaintiff’s child). Taken in the light most

favorable to Lindley, the facts alleged establish that Taylor was deliberately

indifferent to his medical needs.

                                          2.

      Because Lindley has properly identified a violation of his constitutional right

to adequate medical care for purposes of surviving Taylor’s motion for summary

judgment, we next consider whether that right was clearly established at the time

of the violation. This Court must determine whether a “reasonable official” would

understand that what she was doing violated the right in question. Coffin v.

Brandau, 642 F.3d 999, 1013 (11th Cir. 2011) (en banc) (quotation omitted). In

this Circuit, a right can be clearly established in three ways. Terrell v. Smith, 668

F.3d 1244, 1255 (11th Cir. 2012). First, cases from the United States Supreme

Court, the Eleventh Circuit, or the highest court of the state where the relevant

events took place (here, the Alabama Supreme Court) may clearly establish the

right. Id. at 1256. “A judicial precedent with materially identical facts is not

                                          9
             Case: 15-11491      Date Filed: 06/13/2016    Page: 10 of 14

essential for the law to be clearly established, but the preexisting law must make it

obvious that the defendant’s acts violated the plaintiff’s rights in the specific set of

circumstances at issue.” Youmans v. Gagnon, 626 F.3d 557, 563 (11th Cir. 2010)

(per curiam). Second, a legal principle announced in caselaw may establish the

right “with obvious clarity to the point that every objectively reasonable

government official facing the circumstances would know that the official’s

conduct did violate federal law.” Gilmore v. Hodges, 738 F.3d 266, 279 (11th Cir.

2013) (quotation omitted). Third, an official’s conduct may be “so bad that case

law is not needed to establish that the conduct cannot be lawful.” Id. (quotation

omitted). Cases successfully invoking the second and third rationales are rare.

Coffin, 642 F.3d at 1015.

      Taylor does not argue that existing caselaw failed to give her “fair warning

that [her] alleged treatment of [Lindley] was unconstitutional.” Hope v. Pelzer,

536 U.S. 730, 741, 122 S. Ct. 2508, 2516 (2002). Instead, she says that she should

not be deprived of liability because Lindley “did not prove that he had MSRA or a

staph infection.” However, the district court identified specific Circuit precedent

that gave Taylor the requisite notice that Lindley’s condition was serious enough to

require treatment. In Andujar v. Rodriguez, 486 F.3d 1199 (11th Cir. 2007), this

Court held that dog bites on the arrestee’s upper thigh created a serious medical

need. Id. at 1203. The plaintiff was “crying in pain, and [] his ability to walk was

                                           10
             Case: 15-11491      Date Filed: 06/13/2016    Page: 11 of 14

impaired” because of the bites. Id. Here, Lindley had an obvious sore on his leg

that was red, swollen, and later developed a blackened center. His condition

worsened until it was too painful for him to undress himself and “even impossible

for [him] to get out of bed.” By February 2, he could not walk or even “sit

upright.” These symptoms were sufficiently similar to those described in Andujar

to establish that Lindley needed treatment.

      Another case from our Circuit, Mandel v. Doe, 888 F.2d 783 (11th Cir.

1989), establishes that Taylor’s treatment of Lindley was “so cursory as to amount

to . . . deliberate indifference.” Id. at 789. In Mandel, the plaintiff suffered a hip

injury which worsened to the point “that he could barely stand.” Id. at 785. The

plaintiff repeatedly requested treatment over the course of two months, but was

misdiagnosed with muscle inflammation and only given aspirin or a muscle

relaxant. Id. at 785–86. By the time he was released, he needed a complete hip

replacement. Id. at 787. In this case, Lindley likewise complained of pain so

severe that it prevented him from standing. And yet the only treatment he was

provided before leaving the Birmingham Jail was Tylenol. After Mandel, a

reasonable nurse would know that this was constitutionally inadequate care.

      Indeed, legal principles announced by this Circuit have also established this

right such that “every objectively reasonable government official facing the

circumstances would know that the official’s conduct did violate federal law.”

                                           11
             Case: 15-11491     Date Filed: 06/13/2016    Page: 12 of 14

Gilmore, 738 F.3d at 279. This Court has stated that “an official acts with

deliberate indifference when he intentionally delays providing an inmate with

access to medical treatment, knowing that the inmate has . . . an urgent medical

condition that would be exacerbated by delay.” Lancaster, 116 F.3d at 1425. This

general statement sufficiently establishes that not treating Lindley even after he

became feverish and could no longer get out of bed for meals was deliberate

indifference. Because a reasonable nurse would have known that refusing Lindley

treatment in his condition was a constitutional violation, we affirm the district

court’s ruling that Taylor is not entitled to qualified immunity with respect to

Lindley’s § 1983 claim.

                                         III.

      We also affirm the district court’s denial of state-law immunity with respect

to Lindley’s negligence claim. Taylor argues that she is entitled to state-agent

immunity under Ex parte Cranman, 792 So. 2d 392 (Ala. 2000), and discretionary-

function immunity under Alabama Code § 6-5-338. Neither argument has merit.

                                          A.

      In Cranman, a plurality of the Alabama Supreme Court clarified the scope of

Alabama’s state-agent immunity doctrine. Under Alabama law, a state agent is

immune from civil liability if she is engaged in:

   (1) formulating plans, policies, or designs; or

                                          12
              Case: 15-11491     Date Filed: 06/13/2016    Page: 13 of 14

   (2) exercising his or her judgment in the administration of a department
       or agency of government, including, but not limited to, examples such
       as:
       (a) making administrative adjudications;
       (b) allocating resources;
       (c) negotiating contracts;
       (d) hiring, firing, transferring, assigning, or supervising personnel; or
   (3) discharging duties imposed on a department or agency by statute, rule,
       or regulation, insofar as the statute, rule, or regulation prescribes the
       manner for performing the duties and the State agent performs the
       duties in that manner; or
   (4) exercising judgment in the enforcement of the criminal laws of the
       State, including, but not limited to, law-enforcement officers’
       arresting or attempting to arrest persons; or
   (5) exercising judgment in the discharge of duties imposed by statute,
       rule, or regulation in releasing prisoners, counseling or releasing
       persons of unsound mind, or educating students.

Cranman, 792 So. 2d at 405. After Cranman, the Alabama Supreme Court

established a burden-shifting framework to analyze claims of state-agent

immunity. First, the defendant must demonstrate that “the plaintiff’s claims arise

from the defendant’s performance of a discretionary function.” Hollis v. City of

Brighton, 950 So. 2d 300, 306 (Ala. 2006) (quotation omitted). The burden then

shifts to the plaintiff to “establish that the defendant acted in bad faith or with

malice or willfulness.” Id. (quotation omitted).

      Taylor fails at the first step. She claims that her conduct falls under

Cranman’s third category: “discharging duties imposed on a department or agency

by statute, rule, or regulation.” Id. However, she has not identified any “statute,

                                           13
             Case: 15-11491     Date Filed: 06/13/2016    Page: 14 of 14

rule, or regulation prescrib[ing] the manner for performing [her] duties.” Id. As

such, she is not entitled to state-agent immunity.

                                          B.

      Taylor also claims discretionary-function immunity under Alabama Code

§ 6-5-338. The statute provides, in relevant part, “[e]very peace officer . . . who is

employed or appointed pursuant to the Constitution or statutes of this state . . .

shall have immunity from tort liability arising out of his or her conduct in

performance of any discretionary function within the line and scope of his or her

law enforcement duties.” Ala. Code § 6-5-338(a). According to the statute, a

peace officer is one “empowered . . . to execute warrants, to arrest and to take into

custody persons who violate [the law].” Id.; see also Walker v. City of Huntsville,

62 So. 3d 474, 501 (Ala. 2010). Taylor has presented no evidence that she is

empowered to perform the duties of a peace officer. Therefore, she cannot claim

discretionary-function immunity under Alabama Code § 6-5-338.

                                          IV.

      We hold that Lindley’s claims are not time-barred because his amended

complaint “relates back” to his original complaint. Because we also conclude that

Taylor is not entitled to qualified immunity or state-agent immunity, we affirm the

district court’s denial of summary judgment.

      AFFIRMED.

                                          14


58 Wn. App. 454 (1990)
793 P.2d 994
RICHARD SIEKAWITCH, Respondent,
v.
WASHINGTON BEEF PRODUCERS, INC., Appellant.
No. 10150-9-III.
The Court of Appeals of Washington, Division Three.
July 12, 1990.
Robert Tenney, Mark D. Watson, and Meyer, Fluegge & Tenney, for appellant.
David H. Putney, for respondent.
GREEN, J.
Richard Siekawitch was hired by Washington Beef Producers, Inc., of Yakima in 1979. His employment was terminated in 1984. He then brought this action against Washington Beef for wrongful termination. At trial Washington Beef moved for a directed verdict on the issue of liability. The court granted the motion with respect to the theories of express and implied contract; however, it submitted to the jury the issue of whether the company *456 breached promises of specific treatment in specific situations contained in an employee manual. Mr. Siekawitch was awarded $130,000 in damages. Washington Beef appeals; Mr. Siekawitch cross-appeals.
Washington Beef contends the court erred by (1) not granting its motion for a directed verdict as to all theories; (2) instructing the jury that termination required just cause; and (3) refusing to instruct that termination could be justified on grounds not designated at the time of discharge. In the cross appeal, Mr. Siekawitch contends the court erred by (1) dismissing his express and implied contract theories; and (2) refusing to admit certain impeachment evidence supporting his claim that his termination was for pretextual reasons. We affirm in part, reverse in part and remand for a new trial.
Washington Beef hired Mr. Siekawitch in 1979 for an indefinite term to supervise the shipping and cooling departments at its plant in Yakima. At the initial employment interview, Jim King, the chief executive officer and plant general manager, told him that if he did his job he would "stay and ... advance ...". There was no written employment contract. Within a short time, he became traffic manager in addition to his other duties.
In 1983 the company issued its first employee manual. It contained a section entitled "Plant Rules":
Violations of the following [20] rules are subject to disciplinary action up to and including discharge:
....
12. Unauthorized solicitations, collection funds, pledges, subscriptions, circulation of petitions and leaflets, solicitation of membership, transaction of personal business and conducting activities of a similar nature.
....
16. Failure to perform a job according to established standards or procedure, inefficiency, laziness, poor housekeeping, sleeping in the plant or other undesirable performance.
Mr. Siekawitch testified he was told the plant rules applied to him. He claims he relied on them and while employed by Washington Beef never looked elsewhere for work.
*457 In August 1984, Mr. Siekawitch was terminated for the stated reason of "poor job performance". The evidence indicates the company also justified his termination based on the fact his duties could be assimilated by another employee. Additionally, he was criticized by his co-workers for conducting personal business on company time. The evidence was in sharp conflict with respect to each of these reasons. Mr. Siekawitch took the position his termination was pretextual because he was caught in the middle of a struggle between the owners of the company  the Monsons and Van de Graafs on the one side and the Schaakes on the other  concerning allocations of product to be hauled by Pistoresi & Sons and Ellensburg Transportation (Ell Trans). Mr. Siekawitch believed his dismissal was caused by his questioning the actions of Paul Schaake, the plant superintendent, who he claimed was pressuring him to divert loads to Ell Trans. The Schaakes had a security interest in some of Ell Trans' trucks.
The jury returned a special verdict finding Mr. Siekawitch justifiably relied on promises of specific treatment in specific situations contained in the manual and that the company breached such promises causing Mr. Siekawitch $130,000 in damages. The court awarded him $37,101.25 in attorney fees.
First, instead of giving instructions 4, 6 and 10, Washington Beef contends the court should have granted its motion for a directed verdict on Mr. Siekawitch's claim of breach of promises of specific treatment in specific situations contained in the manual. Thompson v. St. Regis Paper Co., 102 Wn.2d 219, 685 P.2d 1081 (1984). The company argues there was no evidence Mr. Siekawitch was aware of, or relied on, any specific provisions in the manual in remaining on the job and not actively seeking other employment. In any event, Washington Beef contends, the court should have ruled as a matter of law the policy manual did not provide promises of specific treatment in specific situations, citing Stewart v. Chevron Chem. Co., 111 *458 Wn.2d 609, 762 P.2d 1143 (1988) and Messerly v. Asamera Minerals, (U.S.) Inc., 55 Wn. App. 811, 780 P.2d 1327 (1989). We find no error.
[1] In general, an employment contract indefinite in duration is terminable at the will of either the employer or employee, with or without cause. Roberts v. ARCO, 88 Wn.2d 887, 891, 568 P.2d 764 (1977). However, in Thompson v. St. Regis Paper Co., supra, the court outlined exceptions to this rule. There, in an action for wrongful termination, it was shown the employee relied on the terms of a policy manual. The court held that "employers may be obligated to act in accordance with policies as announced in handbooks issued to their employees." Thompson, at 229. The court reasoned:
It would appear that employers expect, if not demand, that their employees abide by the policies expressed in such manuals. This may create an atmosphere where employees justifiably rely on the expressed policies and, thus, justifiably expect that the employers will do the same....
Therefore, we hold that if an employer, for whatever reason, creates an atmosphere of job security and fair treatment with promises of specific treatment in specific situations and an employee is induced thereby to remain on the job and not actively seek other employment, those promises are enforceable components of the employment relationship.
Thompson, at 230.
[2] Here, the Washington Beef manual is unclear as to whether the at-will relationship was preserved. It generally describes an atmosphere of fair treatment in personnel policies and then specifies 20 plant rules, the violation of which "are subject to disciplinary action up to and including discharge". (Italics ours.) While this language could mean the company retains discretion to terminate an employee at will and the listed reasons are merely illustrative violations, it may also mean no termination will occur unless the rules are violated. Since the manual is susceptible to differing interpretations and the evidence is conflicting on which interpretation was intended, an issue of *459 fact existed over whether an at-will relationship was preserved.[1]See Thompson, at 233.
[3] In reviewing the court's denial of Washington Beef's motion for a directed verdict on this issue, there must be substantial evidence, when viewed in the light most favorable to Mr. Siekawitch, to support affirmative answers to these questions: (1) Did the policy manual apply to Mr. Siekawitch as a supervisor? (2) Did the manual create an atmosphere of job security and fair treatment with promises of specific treatment in specific situations? (3) Did Mr. Siekawitch justifiably rely on such promises? (4) Did the company breach promises in the manual thereby causing damage to Mr. Siekawitch? Thompson, at 233; see also Brady v. Daily World, 105 Wn.2d 770, 775, 718 P.2d 785 (1986). The challenged jury instructions 4,[2] 6[3] and *460 10[4] and the special verdict correctly presented these issues and the at-will doctrine to the jury.
Focusing on the substantial evidence question, only justifiable reliance is in issue. Mr. Siekawitch testified he knew of the 20 plant rules, believed they applied to him, relied on them, and never once looked elsewhere for work while employed at Washington Beef. Paul Schaake, who helped draft the manual, testified the company issued it to instill a feeling of security in its employees, and the plant rules were intended to require justification for discharge. This evidence sufficiently raised a jury question as to whether Mr. Siekawitch justifiably relied on promises of specific treatment in specific situations. Thus, there was no error in submitting this issue to the jury.
At this juncture, to facilitate review of Washington Beef's other claimed instructional errors, we will address Mr. Siekawitch's cross appeal that the court erred in directing a *461 verdict on his express or implied contract claims. We find no error.
Mr. Siekawitch argues there was substantial evidence to support his express contract theory based upon Mr. King's statement at his initial interview in 1979 that as long as he did the job he would stay and advance with the company. He claims in reliance on this statement, he sold a fast food business and accepted Mr. King's offer of employment, thus satisfying the elements of an express contract. Toussaint v. Blue Cross & Blue Shield, 408 Mich. 579, 292 N.W.2d 880 (1980). He further argues there was also substantial evidence of an implied contract, citing Thompson, at 233. We disagree.
[4] The burden of proving a contract is on the party asserting it and requires proof of each essential element. Johnson v. Nasi, 50 Wn.2d 87, 91, 309 P.2d 380 (1957). Washington courts adhere to the objective manifestation theory of contracts, which imputes to a person an intention corresponding to the reasonable meaning of words and acts. Dwelley v. Chesterfield, 88 Wn.2d 331, 335, 560 P.2d 353 (1977). Unexpressed intentions have no bearing on mutual intention. Dwelley v. Chesterfield, supra.
In Toussaint, relied upon by Mr. Siekawitch, the employees specifically negotiated for job security. One was told he would be with the company "`as long as I did my job'"; the other was told that if he was "`doing the job'" he would not be discharged. Toussaint, 408 Mich. at 597, 610. The court held:
When a prospective employee inquires about job security and the employer agrees that the employee shall be employed as long as he does the job, a fair construction is that the employer has agreed to give up his right to discharge at will without assigning cause and may discharge only for cause....
Toussaint, 408 Mich. at 610. We do not find Toussaint controlling.
[5] Here, Mr. Siekawitch testified written company policy played no part in his decision to accept employment; instead, he relied on Mr. King's statement that if he did his *462 job well he would "stay and ... advance ..." or he would "do well with the company, ... advance in wages, ... and ... have a good future there." We have reviewed the record and, unlike Toussaint, find no evidence that Messrs. Siekawitch and King specifically bargained for job security which would require discharge only for cause. Mr. Siekawitch did not testify that he gave up his fast food business in return for employment at Washington Beef. His reliance on Mr. King's statement only reveals a subjective belief derived from statements typical in employment interviews and is insufficient to erase the at-will doctrine. Only when the parties specifically bargain for security will the law require just cause for termination. Toussaint v. Blue Cross & Blue Shield, supra. Consequently, the court properly directed a verdict on the express contract claim.
With respect to an implied contract, Mr. Siekawitch's argument, citing Thompson, at 233, is that promises of specific treatment in specific situations are the equivalent of a promise of termination only for just cause. Therefore, he contends, the court erred in directing a verdict against him on that theory. This argument misconstrues Thompson. There, at page 233, the court concluded:
An employment contract indefinite as to duration, is terminable at will by either the employee or employer. But such a contract is terminable by the employer only for cause if (1) there is an expressed or implied agreement to that effect or (2) the employee gives consideration in addition to the contemplated service. Moreover, promises of specific treatment in specific situations found in an employee manual ... issued by an employer to ... employees may, in appropriate situations, obligate the employer to act in accord with those promises.

(Citation omitted. Italics ours.) The emphasized language indicates an employer is obligated to act in accord with the promises expressed in the manual. If the employer fails to do so, then the promise in the manual has been breached and the employee may recover damages. This obligation is reflected in instructions 4, 6 and 10. Thus, the evidence does not support an implied contract of discharge only for cause.
*463 We hold the court correctly concluded the evidence supports only the theory of breach of promises of specific treatment in specific situations and the express and implied contract theories were properly rejected. Thus, the court did not err in its ruling on the motion for directed verdict.
Second, Washington Beef contends the court erred in instructing the jury that termination required just cause if the employee manual applied, citing Baldwin v. Sisters of Providence in Wash., Inc., 112 Wn.2d 127, 769 P.2d 298 (1989). We agree.
In Baldwin, there was an employee manual that specifically required just cause for discharge. That is not the situation here. The Washington Beef manual did not contain such a provision and there was no other express or implied contract that would create such a requirement. The injection of just cause into the case[5] was confusing and prejudicial in that neither of the theories presented to the jury required just cause be shown, i.e., specific treatment in specific situations and employment at will. For example, the jury could have found Mr. Siekawitch was discharged for pretextual reasons and that was not just cause; whereas, under the at-will doctrine or the manual, the discharge would have been proper without just cause.
Washington Beef's proposed instructions 18, 19 and 20 provided, in essence, that dismissal was justified even if no grounds existed so long as the employer reasonably believed they did. These instructions would render illusory the promises of specific treatment in specific situations under Thompson and were thus properly rejected.
Third, Washington Beef contends the court erred in refusing to instruct the jury that an employer may justify dismissal for any reason, even though not designated, that *464 existed at the time of termination. Haag v. Revell, 28 Wn.2d 883, 184 P.2d 442 (1947). We find no error.
[6] In Haag, the employment contract was definite in duration, i.e., 1 year. In light of the fixed term of employment, the court held a showing of good cause was required and such cause could be based on a ground not designated but which existed at the time of termination. Haag, at 889. Here, Mr. Siekawitch was employed for an indefinite term. Thus, Haag, is not apposite.
Fourth, Washington Beef contends any retrial should be limited to the issue of liability because the damage issue has been thoroughly litigated and not appealed. We agree.
[7] Mina v. Boise Cascade Corp., 104 Wn.2d 696, 707-08, 710 P.2d 184 (1985) is controlling:
A new trial may be limited to certain issues where it clearly appears that the original issues were distinct and justice does not require resubmission of the entire case to the jury. McCurdy v. Union Pac. R.R., 68 Wn.2d 457, 413 P.2d 617 (1966). If there is a possibility that the verdict was the result of a compromise, limiting retrial to certain issues is improper. Myers v. Smith, 51 Wn.2d 700, 321 P.2d 551 (1958)....
In this case, the jury was properly instructed on damages and the special verdict form contained separate questions relating to liability and damages. Further, each party had an opportunity to present evidence on the damages question. On appeal, neither party has argued that the amount of damages was excessive or insufficient. See France v. Peck, 71 Wn.2d 592, 430 P.2d 513 (1967). Under these circumstances a retrial limited to the issue of liability is appropriate.
There is no evidence to suggest Mr. Siekawitch received a compromise verdict. Neither party on appeal questions the amount awarded and the special verdict segregated liability from damages. Thus, retrial should be limited to the question of liability. Shaw v. Browning, 59 Wn.2d 133, 367 P.2d 17 (1961), relied upon by Mr. Siekawitch, is distinguishable. There it was agreed the verdict was inadequate and the evidence suggested the plaintiff received a compromise verdict.
Finally, in his cross appeal, Mr. Siekawitch contends the court erred in not allowing him to impeach Richard Van de *465 Graaf, a former principal in Washington Beef, using a certified transcript of his testimony from a 1988 Washington Utilities and Transportation Commission (WUTC) hearing. He argues that testimony, which concerns whether the Schaake family interfered with the trucking of Washington Beef's product, was relevant to confirm his theory of pretextual discharge and should be allowed at the retrial. We disagree.
The record shows Mr. Van de Graaf's testimony at the WUTC hearing was cumulative of his trial testimony. Moreover, he did not have firsthand knowledge of the allegations against the Schaakes. Consequently, this testimony is not admissible on retrial.
In light of our decision, the award of attorney fees to Mr. Siekawitch for the trial is reversed and both parties shall bear their own attorney fees on appeal.
Affirmed in part; reversed in part and remanded.
MUNSON, C.J., and THOMPSON, J., concur.
NOTES
[1]  Both Stewart and Messerly, cited by Washington Beef, are distinguishable from the instant case. In Stewart, it was held, as a matter of law, that the following handbook provision was not a promise of specific treatment: "In determining the sequence of layoffs due to lack of work, consideration should be given to performance, experience and length of service." (Italics ours.) Stewart, at 611, 613-14. Unlike Mr. Siekawitch, the employee in Stewart did not know of the layoff provision prior to discharge. In Messerly, this court held the at-will employment relationship was preserved as a matter of law by a conspicuous disclaimer provision in the introductory section of the handbook which the employees acknowledged understanding. Messerly, at 816-17. Here, the Washington Beef manual does not contain such a disclaimer.
[2]  Instruction 4 stated:

"The plaintiff claims that the defendant promised him specific treatment in specific situations and that he reasonably relied on those promises and was thereby induced to remain on the job and not actively seek other employment. The plaintiff further claims that in discharging him, defendant violated its promise of specific treatment in specific situations, and that he was therefore improperly discharged. Plaintiff claims that defendant's conduct was a proximate cause of damage to plaintiff. The defendant denies these claims.
"In addition, the defendant claims the dismissal was proper.
"The defendant further denies the nature and extent of the claimed damage."
[3]  Instruction 6 stated:

"Plaintiff has the burden of proving each of the following propositions:
"1. That the company policy and amendments applied to plaintiff.
"2. That defendant, through the company policy, created an atmosphere of job security and fair treatment with promises of specific treatment in specific situations.
"3. That plaintiff justifiably relied on these promises of specific treatment in specific situations and was induced thereby to remain on the job and not actively seek other employment.
"4. That defendant breached its promises of specific treatment in specific situations.
"5. That plaintiff was damaged.
"6. That defendant's breach was a proximate cause of plaintiff's damage.
"If you find from your consideration of all the evidence that each of the propositions has been proved, your verdict should be for the plaintiff. On the other hand, if you find that any proposition has not been proved, your verdict should be for the defendant."
[4]  Instruction 10 stated:

"Generally, an employment contract, indefinite as to duration, is terminable at will by either the employee or the employer. An employment contract which is terminable `at will' means the employer may terminate the employee without cause or for any reason which the employer deems sufficient.
"If, however, an employer creates an atmosphere of job security and fair treatment with promises of specific treatment in specific situations, and the employee is induced to remain on the job and not actively seek other employment, those promises are a part of the employment relationship."
[5]  Instruction 9 stated:

"You are instructed that if you find the employment manual applies to the plaintiff, then his discharge must be supported by a fair and honest cause or reason regulated by good faith on the part of the defendant based upon facts reasonably believed by the defendant to be true and which are not for any arbitrary or capricious reason."


898 P.2d 263 (1995)
Shelley L. RUSSELL, Plaintiff and Appellant,
v.
The STANDARD CORPORATION, The Salt Lake Tribune, and The Associated Press, Defendants and Appellee.
No. 940378.
Supreme Court of Utah.
July 6, 1995.
B. Ray Zoll, Salt Lake City, for appellant.
Randy L. Dryer, David W. Zimmerman, Salt Lake City, for appellee.
ZIMMERMAN, Chief Justice:
Shelley Russell appeals the dismissal of her claim for libel against The Standard Corporation ("Standard") on the ground that her claim is barred by the applicable statute of limitations. We affirm.
The material facts in this case are not disputed. On November 26, 1992, Standard published an article in the Ogden Standard Examiner ("Standard Examiner"), an Ogden newspaper with approximately 63,000 subscribers. That same day, Standard electronically transmitted the article to The Associated Press news organization. The Associated Press then distributed the article to its Utah members, including The Salt Lake *264 Tribune, which published the article on November 29, 1992.
In November of 1993, Russell filed this libel action against The Associated Press and The Salt Lake Tribune, alleging that the article contained defamatory statements against her.[1] On February 7, 1994, after learning that Standard had originated the article, Russell amended her complaint to add Standard as a defendant. Shortly thereafter, Standard moved to dismiss pursuant to rule 12(b)(6) of the Utah Rules of Civil Procedure. The district court granted Standard's motion, concluding that Russell's claim against Standard was time-barred under Utah Code Ann. § 78-12-29(4), which provides a one-year statute of limitations for libel actions. Russell appeals.
"A rule 12(b)(6) motion to dismiss admits the facts alleged in the complaint but challenges the plaintiff's right to relief based on those facts." St. Benedict's Dev. Co. v. St. Benedict's Hosp., 811 P.2d 194, 196 (Utah 1991). In determining whether a trial court properly granted a motion to dismiss under rule 12(b)(6), we accept the factual allegations in the complaint as true and consider them and all reasonable inferences to be drawn from them in a light most favorable to the plaintiff. Colman v. Utah State Land Bd., 795 P.2d 622, 624 (Utah 1990); Lowe v. Sorenson Research Co., 779 P.2d 668, 669 (Utah 1989). "Because the propriety of a 12(b)(6) dismissal is a question of law, we give the trial court's ruling no deference and review it under a correctness standard." St. Benedict's, 811 P.2d at 196 (citing Lowe, 779 P.2d at 669; Kimball v. Campbell, 699 P.2d 714, 716 (Utah 1985)).
Citing Allen v. Ortez, 802 P.2d 1307 (Utah 1990), Russell contends that the running of the statute of limitations was tolled until she discovered or reasonably could have discovered that Standard was the source of the article. The plaintiffs in Allen brought a libel action arising out of, inter alia, a letter directed to the mayor of Murray City. Id. at 1308-09. The defendants argued that the plaintiffs' action was time-barred because the letter was sent more than one year before the action was commenced. Id. at 1313. We disagreed, holding:
[I]n libel cases, the one-year period of section 78-12-29(4) does not begin to run until the libel is known or is reasonably discoverable by the plaintiff. Whether plaintiffs knew or should have known of the letter to the mayor is a question of fact to be determined on remand.
Id. at 1314. According to Allen, Russell asserts, this case should be remanded for a determination of the factual question of when she first learned or could reasonably have discovered that the article originated with Standard.
In response, Standard argues that the discovery rule does not operate to toll the running of the statute of limitations unless the alleged defamation is inherently undiscoverable by the plaintiff, such as that arising out of a private communication like the letter at issue in Allen. Because Russell's defamation claim arose out of a newspaper article, Standard contends, the alleged defamation was not inherently undiscoverable and therefore the discovery rule should not apply.
We decline any suggestion by Standard that we adopt a test different than that announced in Allen. However, we think that under Allen's standard, the complained-of statements were "reasonably discoverable," as a matter of law, on the date when they were first published in the Standard Examiner. We stand by our statement in Allen that "potential plaintiffs should not be barred from suit if they did not know and could not reasonably have known of the underlying facts giving rise to a cause of action," but we conclude that an alleged defamation is reasonably discoverable, as a matter of law, at the time it is first published and disseminated in a newspaper which is widely available to the public. See Tom Olesker's Exciting World of Fashion, Inc. v. Dun & Bradstreet, Inc., 61 Ill.2d 129, 334 N.E.2d 160, 164 (1975) ("In claimed libels involving, for example, magazines, books, newspapers, and radio and television programs, the publication has been for public attention and knowledge and the *265 person commented on, if only in his role as a member of the public, has had access to such published information."); accord Fleury v. Harper & Row, Publishers, Inc., 698 F.2d 1022, 1028 & n. 4 (9th Cir.), cert. denied, 464 U.S. 846, 104 S.Ct. 149, 78 L.Ed.2d 139 (1983); McGuiness v. Motor Trend Magazine, 129 Cal.App.3d 59, 180 Cal.Rptr. 784, 786 & n. 2 (1982). Any other rule would unduly prolong the exposure of the media to libel suits by rewarding the inattentive plaintiff. Because the article at issue in this case was reasonably discoverable as a matter of law as soon as it was published and disseminated in the Standard Examiner, the discovery rule did not toll the running of the statute of limitations.
Russell also contends that her claim against Standard is not time-barred because her amended complaint in which she added Standard as a defendant relates back to the date her original complaint was filed, which was within the one-year period of limitations following Standard's publication of the article in the Standard Examiner. Rule 15(c) of the Utah Rules of Civil Procedure provides, "Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading." Utah R.Civ.P. 15(c). This rule allows a plaintiff to cure defects in his or her original complaint despite the intervening running of a statute of limitations. Meyers v. Interwest Corp., 632 P.2d 879, 882 (Utah 1981).
Nonetheless, rule 15(c) does not apply to amendments that add new parties "who have no identity of interest with existing parties." Perry v. Pioneer Wholesale Supply Co., 681 P.2d 214, 217 (Utah 1984). "`Identity of interest' as used in this context means that the parties are so closely related in their business operations that notice of the action against one serves to provide notice of the action to the other." Id. Russell does not assert that her original complaint "serve[d] to provide notice of the action to [Standard]." In fact, the only argument Russell raises in support of her contention that Standard, The Associated Press, and The Salt Lake Tribune have an identity of interest is that "they adopt and incorporate the same material, pursuant to contractual agreements with one another." However, privity of contract alone is an insufficient identity of interest for relation back under rule 15(c). Id. Moreover, we cannot see how the fact that Standard and the two original defendants publish the same articles shows that they have an identity of interest. Therefore, Russell's amended complaint does not relate back to the date her original complaint was filed.
For the foregoing reasons, we conclude that Russell's claim against Standard is barred by the statute of limitations. Accordingly, we affirm.
STEWART, Associate C.J., and HOWE, DURHAM and RUSSON, JJ., concur.
NOTES
[1]  Both The Salt Lake Tribune and The Associated Press were subsequently dismissed from the lawsuit on the ground that the alleged defamatory statements were privileged.