* State of Washington v. Amber Dawn Kelly

NOTICE: SLIP OPINION
(not the court’s final written decision)
The opinion that begins on the next page is a slip opinion. Slip opinions are the
written opinions that are originally filed by the court.
A slip opinion is not necessarily the court’s final written decision. Slip opinions
can be changed by subsequent court orders. For example, a court may issue an
order making substantive changes to a slip opinion or publishing for precedential
purposes a previously “unpublished” opinion. Additionally, nonsubstantive edits
(for style, grammar, citation, format, punctuation, etc.) are made before the
opinions that have precedential value are published in the official reports of court
decisions: the Washington Reports 2d and the Washington Appellate Reports. An
opinion in the official reports replaces the slip opinion as the official opinion of
the court.
The slip opinion that begins on the next page is for a published opinion, and it
has since been revised for publication in the printed official reports. The official
text of the court’s opinion is found in the advance sheets and the bound volumes
of the official reports. Also, an electronic version (intended to mirror the
language found in the official reports) of the revised opinion can be found, free of
charge, at this website: https://www.lexisnexis.com/clients/wareports.
For more information about precedential (published) opinions, nonprecedential
(unpublished) opinions, slip opinions, and the official reports, see
https://www.courts.wa.gov/opinions and the information that is linked there.

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON,
Respondent,
v.
AMBER DAWN KELLY,
Appellant.
)
)
)
)
)
)
)
)
)
No. 39411-5-III
OPINION PUBLISHED IN PART
FEARING , J. — Amber Kelly appeals from her convictions for delivering
hydrocodone and fentanyl. According to the State, the delivered drugs by themselves, or
in combination with other substances, killed Nichole Overton. Kelly, on appeal, argues
that the superior court should have suppressed messages found on Overton’s cell phone,
that the superior court committed error when allowing testimony that she did not visit
Overton’s parents after the death, that the State committed prosecutorial misconduct, that
insufficient evidence supports her conviction for delivering hydrocodone, and that the
trial court erred when denying her release on bond during the appeal. We discern one
error, but deem the error harmless. We affirm the convictions.
FILED
SEPTEMBER 10, 2024
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 39411-5-III
State v. Kelly
2
FACTS
This prosecution arises from the death of Nichole Overton late on the night of May
22, 2021 or the early morning of May 23 from a drug overdose. The State alleges that
defendant Amber Kelly delivered the drugs to Overton. We garner the facts from the trial
and a hearing on a motion to suppress evidence.
In May 2021, decedent Nichole Overton was unmarried with no children, living in
the small Whitman County farming town of Tekoa in the rolling wheat fields of the
Palouse. Months earlier she suffered a hip injury. Within a month before her passing,
Nichole was on the prescriptions alprazolam for anxiety and methylphenidate for
attention deficit disorder. She lacked a prescription for hydrocodone at that time, but had
been prescribed the drug in the past due to a surgery. She never had a prescription for
fentanyl.
By the time of her death, Nichole Overton had roomed with her high school friend,
Ashley Schavolt, for one week. Richard Kelly, Amber Kelly’s father, owned the house
where the two lived.
Amber Kelly worked as the cashier at the Tekoa Market, a grocery store owned by
her father. Nichole Overton and Ashley Schavolt were friends with accused Amber
Kelly.
Nichole Overton’s parents were Phil and Laurie Overton, who also resided in the
small town of Tekoa. Laurie was also a friend of Amber Kelly. The two would visit
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 39411-5-III
State v. Kelly
3
when Laurie shopped at the grocery store, and they occasionally communicated on
Facebook.
Before trial, Amber Kelly sought to suppress messages found on a cell phone used
by Nichole Overton. Law enforcement had seized the phone after Nichole’s demise.
Father Phil Overton testified that he purchased multiple cell phones for Nichole,
including the one confiscated and searched by law enforcement. Phil paid the cell
phone’s plan charges. The father did not expect to be repaid by Nichole for paying the
bills. When asked if the phone was a gift to Nichole, Phil replied:
No, it was just an agreement. We had purchased the plan, a family plan for
both of my daughters when they were very young, and we just had a family plan,
and so as renewals or breakages happened, I would purchase a phone to replace it.
Report of Proceeding (RP) at 31.
Mother Laurie Overton declared that she did not expect to be repaid for the cost of
Nichole’s phone bills. When asked whether the phone was a gift, Laurie responded:
It was just something that we provided to them [her children] at a certain
point in their lives.
RP at 34.
On May 22, 2021, Ashley Schavolt, Nichole Overton’s roommate, contacted
Amber Kelly through Facebook messenger and requested hydrocodone. Kelly was
Schavolt’s only source for hydrocodone. By May 2021, Schavolt had ingested
hydrocodone for two years. She began using the drug after an oral surgery. At trial, the
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 39411-5-III
State v. Kelly
4
State introduced as an exhibit a screenshot of Kelly and Schavolt’s May 22 Facebook
conversation. Schavolt later sent Kelly money over Facebook for two hydrocodone.
At 11:08 p.m. on May 22, 2021, Amber Kelly sent Nichole Overton a Facebook
message:
I have 1 I can give regardless, so hopefully I get them so you can have your
2. And Ashley is getting 2 dros if you could give them to her.
Exhibit (Ex.) 134. “Dros” is shorthand for hydrocodone. The State introduced as a trial
exhibit this message and other electronic communications between Kelly and Overton.
At trial, Ashley Schavolt averred that, late on May 22, Nichole Overton returned
home and brought her the two hydrocodone Schavolt had ordered from Amber Kelly.
Overton told Schavolt that Kelly gave her the white, oval pills to deliver to Schavolt.
Schavolt was familiar with how hydrocodone affected her body. After ingesting the pills
she received from Nichole, the drug resulted in the usual impact on her.
At trial, Whitman County Sheriff Deputy Bryce Nebe testified that, through his
time with the Quad Cities Drug Task Force, he learned how to identify hydrocodone. A
hydrocodone pill is “white, oval shape.” RP at 202.
On the morning of May 23, 2021, Ashley Schavolt called 911 to report the death,
resulting from a drug overdose, of her roommate, Nichole Overton, during the previous
night. Sheriff Deputy Bryce Nebe responded to Schavolt’s apartment. The deputy
confirmed Nichole’s death and then obtained Schavolt’s permission to search Nichole’s
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 39411-5-III
State v. Kelly
5
bedroom. Bryce Nebe confiscated two cell phones belonging to Nichole. Nebe also
seized two straws cut short with white powder inside and a white pill box, which
contained one and a quarter green and blueish green fentanyl tablets.
At 8:00 a.m., on May 23, Laurie Overton received a message on her phone from
Amber Kelly. The message notified Laurie of police and ambulance present at Nichole’s
residence. Laurie and Phil Overton drove to Nichole’s home, where they spoke to law
enforcement. Law enforcement informed the couple of the death of Nichole. Laurie then
texted Kelly: “She’s gone. She OD’d.” RP at 166; Ex. 101. Kelly responded: “Oh, my
God. I don’t know what to say. I’m so sorry.” Ex. 101.
News of Nichole Overton’s death rapidly spread through the small community of
Tekoa. On May 23, many visitors called on Phil and Laurie Overton to give condolences.
Amber Kelly did not visit the parents.
On May 24, Deputy Bryce Nebe called Phil and Laurie Overton and asked for the
passcode to Nichole’s phones. Deputy Nebe informed the parents that Nichole used the
older of the two cell phones. The Overtons consented to a search of the phones and
provided Nebe with two passcodes. On the phone used by Nichole, Nebe discovered
Facebook conversations between Nichole and Amber Kelly about the sale of fentanyl and
hydrocodone. Deputy Nebe procured a search warrant for the phone after looking at the
Facebook messages.
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 39411-5-III
State v. Kelly
6
Nichole Overton died without executing a will. Phil and Laurie Overton filed no
probate or any court proceeding to gain possession or ownership of Nichole’s property
after her death. We do not know the extent of Nichole’s property, other than two cell
phones.
Law enforcement forwarded, to the Washington State Patrol Crime Laboratory,
the two straws and the pills from the pill box seized in the bedroom of Nichole Overton.
The white powder in the straws tested positive for hydrocodone, diazepam, Ritalin,
oxycodone, and cocaine. The pills tested positive for fentanyl.
PROCEDURE
The State of Washington charged Amber Kelly with two counts of delivery
of a controlled substance—one count for delivering fentanyl and one count for
delivering hydrocodone.
Amber Kelly moved to suppress the Facebook messages that law
enforcement found on Nichole Overton’s cell phone. In response, the State argued
that Nichole’s parents held lawful authority to consent to the search of the phone
because they became the owners of the phone as the next of kin to Nichole on her
death. The State also argued that Phil Overton, Nichole’s father, paid for
Nichole’s phone and her phone bills, which actions established his ownership of
the phone even before Nichole’s death. Kelly argued that Nichole owned the
phones and her parents did not inherit the phones immediately on her death.
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 39411-5-III
State v. Kelly
7
The superior court denied the motion to suppress. The court found the
parents to have owned the cell phone even before Nichole Overton’s death. The
court reasoned that the parents also possessed the right to her property on her
death regardless of the lack of any probate proceeding and thus could consent to
the search of the phone. According to the superior court, no other person inherited
from Nichole or enjoyed the right to handle her property.
The superior court entered findings of fact when denying the motion to
suppress:
12. Phil Overton had paid for the cell phones found in Nicole
[sic]Overton’s bedroom. Phil Overton had a family cell phone plan where
he had multiple numbers and cell phones for the family, including Nichole
Overton, on a single plan that was billed monthly to him. Phil Overton had
provided the cell phones to Nichole Overton for her use but retained
ownership of the cell phones. This has been Phil Overton’s practice for
some time. Involving a series of phones that Phil Overton had provided for
Nichole Overton’s use, Nichole Overton had broken earlier cell phones that
he had provided for her for her use, and he had then lectured her before
taking physical possession of the broken cell phone and then providing a
new phone for her use.
13. Although he let Nichole Overton use the cell phones, Phil
Overton retained ownership of the cell phones found by Deputy Nebe and
had authority to give consent to search them.
. . . .
16. Nichole Overton was 23 years old when she died, she was not
married and had no children. Phil and Laurel Overton were the next of kin
for Nichole Overton. Nichole Overton died without a will.
17. After Nichole Overton died, Nicole [sic] Overton’s sibling and
Nichole Overton’s friends went to Ms. Overton’s apartment and retrieved
Nichole Overton’s belongings and returned them to Phil and Laurel
Overton. There was no probate proceeding for Nicole [sic] Overton’s
estate.
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 39411-5-III
State v. Kelly
8
Clerk’s Papers at 152.
At trial, the State questioned Phil Overton about who visited him and Laurie after
Nichole’s death. Amber Kelly objected to the question on the ground of relevance. The
following colloquy occurred:
Q Okay. What happened after you came home from Nikki’s?
A We made some difficult phone calls. A lot of people coming to
the house. Called my oldest daughter.
MR. MILLER [defense counsel]: Judge, again, relevance, and I
apologize to Mr. Overton, but I don’t see where this has to do anything with
this case. This is a delivery case.
MS. LIERMAN [State’s counsel]: I’m getting there.
Q (By Ms. Lierman) So—
THE COURT: You may answer the question.
THE WITNESS: Just a lot of people coming over, and Deputy
Brown was the first officer to come over. I think he was the only officer to
come over that day, and then the coroner gal. I can’t remember her name.
Q (By Ms. Lierman) Did Amber Kelly come over to the house?
A No.
Q Okay. Do you—are you aware of where Ms. Kelly worked at that
time?
MR. MILLER: Same. I don’t know where this is going. Ms.
Kelly didn’t have an obligation to go to these people house. I
mean, this has nothing to do with delivery of a controlled substance,
and I apologize, Mr. Overton, for your loss, but we’re just kind of
going all over the place and not staying with what is at task.
THE COURT: Okay. Ms. Lierman, your response to that?
MS. LIERMAN: Well, I think it shows consciousness of guilt.
THE COURT: Okay. The objection will be overruled.
Q (By Ms. Lierman) And are you familiar with where Ms. Kelly worked at
the time?
A Yeah. She was at the grocery store is where she worked, the Tekoa
grocery store.
Q In what capacity?
A She was a clerk up front.
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 39411-5-III
State v. Kelly
9
RP at 157-59 (some alterations in original).
Mother Laurie Overton also testified at trial. When asked whether Amber
Kelly visited the house to give her condolences, Laurie responded in the negative.
Kelly did not object to this question.
Ashley Schavolt testified at trial. She declared that, when Nichole Overton
gave Schavolt her two pills, Nichole said they were from Amber Kelly. Kelly
moved to strike Schavolt’s testimony on hearsay grounds. The trial court denied
the request.
During closing, the State did not mention that Amber Kelly failed to visit
Nichole Overton’s parents after Nichole’s death. A jury found Kelly guilty of
delivering both fentanyl and hydrocodone.
During Amber Kelly’s sentencing hearing in December 2022, more than a
year after her conviction, Phil and Laurie Overton informed the court that they still
grieved the loss of their daughter, Nichole.
At sentencing, Amber Kelly moved for an appeal bond. The sentencing
court denied the request while stating that Kelly should serve her sentence
immediately because of harm that otherwise might result if she remained free and
continued to deliver controlled substances. The court commented:
The families of each side and certainly, sure, Nikki Overton was a
drug addict. She bought the pills. She wanted the pills, and she had a
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 39411-5-III
State v. Kelly
10
friend that sold her the pills knowing and everybody knows in this country
that fentanyl is an extremely dangerous drug. A substantial amount of
those pills are lethal, and there’s a nationwide epidemic of fentanyl use and
deaths. There’s thousands of victims dying daily from this drug. It is a
scourge on America and America’s safety and America’s children.
It is important for society to be protected from drug dealers. There
are innumerable parents see their children’s name on stone as a result of
them buying what they think to be is a hobby drug from a friend and it turns
out that the hobby drug is fentanyl that kills them, and it’s the Russian
roulette of drug users buying pills, but sellers have to accept the
responsibility and the results.
RP at 395-96.
LAW AND ANALYSIS
On appeal, Amber Kelly asserts evidentiary error, prosecutorial
misconduct, and insufficient evidence. She contends the superior court should
have granted her motion to suppress the cell phone messages and the court should
have excluded evidence of her declining to visit Nichole Overton’s parents after
the death. Kelly argues the State committed prosecutorial misconduct by eliciting
testimony about her failure to visit the Overtons. She argues that the State based
the conviction of delivery of hydrocodone solely on the testimony of Ashley
Schavolt that the white oval pills taken by Schavolt had the usual effect on her.
According to Kelly, this evidence fell short in establishing beyond a reasonable
doubt that the pills delivered to Nichole were hydrocodone. She also assigns error
to the trial court’s denial of her motion for an appeal bond. We agree with Kelly
that the trial court committed error when overruling her objection to testimony
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 39411-5-III
State v. Kelly
11
about others visiting the Overton home, while she failed to appear. Nevertheless,
we rule the error to be harmless.
Motion to Suppress
Amber Kelly argues that the trial court erred in denying her motion to
suppress the Facebook messages sent between Nichole Overton and her found on
Nichole’s cell phone. She contends law enforcement officers violated her
constitutional privacy rights when seizing the phone and when reviewing its
contents because law enforcement lacked a warrant and valid consent to search.
Kelly does not argue that Deputy Bryce Nebe lacked authority to enter Overton’s
bedroom.
Both parties, in arguing their contradictory positions, assume that
ownership of the cellphone, at the time of seizure, controls. Both parties refuse to
concede Nichole and her parents co-owned the phone. Neither party addresses
whether a deceased person retains any privacy interest in property, for purposes of
Washington Constitution, article I, section 7, in property.
Amber Kelly maintains that Nichole Overton’s parents lacked authority to
consent. According to Kelly, Nichole Overton owned the phone, even after her
death, for at least another forty days. Kelly emphasizes that Overton solely used
the phone. Kelly also contends the trial court erred when relying on the law of
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 39411-5-III
State v. Kelly
12
intestate distribution of assets as an alternative basis for the parents’ ability to
consent.
The State contends that consent from Nichole Overton’s parents, Phil and
Laurie, justified the seizure of the cellphone and the phone’s contents. The State
argues that Phil and Laurie Overton always retained ownership of the phone
because they purchased the phone, repaired the phone, paid the phone bill under a
family plan, and replaced any inoperable phones. The State highlights Phil and
Laurie Overton’s testimony that they did not consider the phone to be a gift to
Nichole. The State also argues that, immediately on Nichole Overton’s death, her
parents, the sole heirs, gained ownership of the phone, assuming they did not
previously own the cellphone.
Amber Kelly assigns no error to the findings of fact entered by the superior
court when denying the motion to suppress. Thus, this reviewing court treats the
findings of fact as verities. State v. Piatnitsky, 170 Wn. App. 195, 228, 282 P.3d
1184 (2012), aff’d, 180 Wn.2d 407, 325 P.3d 167 (2014); State v. Inman, 2 Wn.
App. 2d 281, 288, 409 P.3d 1138 (2018). Both findings of fact 12 and 13 include
a finding that Phil Overton owned the cellphones. Despite the failure of Amber
Kelly to object to this finding, we deem the finding to be in the nature of a
conclusion of law and decline to preclude Kelly from arguing, on appeal, that
Nichole Overton owned the phone.
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 39411-5-III
State v. Kelly
13
We depart from the parties and conclude that ownership does not act as the
controlling factor when determining the party or parties authorized to consent to a
search or seizure. Ownership stands as an important factor, but, in the end, the
right to control possession and use of the object seized holds primacy. We
conclude that, under Washington’s law of intestate succession, Phil and Laurie
Overton possessed the right to control the possession and use of Nichole Overton’s
cell phone when asked for authority to search by law enforcement. We do not
decide whether the Overtons held such authority before the death of Nichole. We
do not address the many cases cited by the parties in support of their respective
contentions regarding ownership of the cellphone.
The Fourth Amendment to the United States Constitution establishes the
right of the people “to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures.” Under article I, section 7 of our state
constitution, “[n]o person shall be disturbed in his private affairs, or his home
invaded, without authority of law.”
The state constitutional right extends to an individual’s reasonable
expectation of privacy. State v. Bowman, 198 Wn.2d 609, 617, 498 P.3d 478
(2021). Under the Fourth Amendment, a search occurs if the government intrudes
on a subjective and reasonable expectation of privacy. State v. Hinton, 179 Wn.2d
862, 868, 319 P.3d 9 (2014). Under article I, section 7, a search occurs when the
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 39411-5-III
State v. Kelly
14
government disturbs those privacy interests which citizens of this state have held,
and should be entitled to hold, safe from governmental trespass absent a warrant.
State v. Hinton, 179 Wn.2d 862, 868 (2014); State v. Myrick, 102 Wn.2d 506, 511,
688 P.2d 151 (1984). Kelly relies only on the Washington Constitution.
Washington courts employ a two-part test to determine whether a violation
of article I, section 7 occurred: (1) whether the government intruded on a private
affair and, if so, (2) whether the governmental conduct was justified by authority
of law. State v. Bowman, 198 Wn.2d 609, 618 (2021). We address the two parts
in such order, while focusing on the second element.
Amber Kelly argues that the police search of Nichole Overton’s cell phone
before the issuance of the search warrant constituted an intrusion into a private
affair because Kelly possessed a reasonable expectation of privacy in her
Facebook message communications with Overton. If the State does not intrude
unreasonably into someone’s private affairs, no search has occurred and article I,
section 7 has not been violated. State v. Bowman, 198 Wn.2d 609, 618 (2021);
State v. Goucher, 124 Wn.2d 778, 783-84, 881 P.2d 210 (1994). The State argues
that one has a limited right to privacy in electronic communications, but it does
not deny that Kelly held a protected right to her communications even when found
in Nichole Overton’s cell phone. We conclude that Kelly possessed a
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 39411-5-III
State v. Kelly
15
constitutionally recognized privacy interest in the Facebook messages found on
Overton’s phone.
To have standing to challenge a search and seizure, a defendant must have a
privacy interest in the place or item searched. Our state Supreme Court has
recognized that individuals possess a constitutionally protected privacy interest in
information on their cellular devices. State v. Bowman, 198 Wn.2d 609, 618
(2021); State v. Samalia, 186 Wn.2d 262, 269, 375 P.3d 1082 (2016).
Amber Kelly did not own, possess, or control the use of Nichole Overton’s
cell phone. In State v. Hinton, 179 Wn.2d 862 (2014), the Washington Supreme
Court addressed whether a sender of text messages retained a privacy interest in
his messages contained in the receiver of the message’s cell phone. The Supreme
Court resolved the issue on state constitutional grounds, holding Shawn Hinton
retained a privacy interest in the text messages he sent to an associate’s phone.
We move to the second element of the article 1, section 7 test. The “authority of
law” component of section 7 demands a valid warrant unless the State shows that a
search or seizure falls within one of the exceptions to the warrant requirement. State v.
Hinton, 179 Wn.2d 862, 868-69 (2014). Consent is one of the exceptions. State v.
Bowman, 198 Wn.2d 609, 618 (2021). The State has the burden of proving an exception
applies. The State must show that any consent to search was voluntary, the consenting
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 39411-5-III
State v. Kelly
16
party had authority to consent, and the search did not exceed the scope of the consent.
State v. Bowman, 198 Wn.2d 609, 618-19 (2021).
We could affirm the trial court’s finding of consent on either one of two
independent grounds: (1) Phil Overton retained ownership or control of the phone
even though he delivered the phone to his daughter to use; or (2) control, if not
ownership, of the phone passed to the parents immediately on Nichole’s death.
We affirm based on the second ground.
Article I, section 7 case law does not reference ownership of property when
assessing effective consent to a seizure. Ownership may be in one person and the
right of possession or control in another. Retail Store Employees Union, Local
1001 Chartered By Retail Clerks International Association, AFL-CIO v.
Washington Surveying & Rating Bureau, Washington Bureau, 87 Wn.2d 887, 897,
558 P.2d 215 (1976). At least in the setting of a residential landlord-tenant
relationship, the owner of the premises generally lacks authority to consent. State
v. Mathe, 102 Wn.2d 537, 544, 688 P.2d 859 (1984). Instead, a person must hold
“authority” over the place or thing to be searched. State v. Cantrell, 124 Wn.2d
183, 187, 875 P.2d 1208 (1994). Stated differently, the person bestowing consent
must maintain a right to “control” over the property. State v. Mathe, 102 Wn.2d
537, 544 (1984). Expectation of privacy in property relates to the authority to
control the property. State v. Morse, 156 Wn.2d 1, 15, 123 P.3d 832 (2005); State
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 39411-5-III
State v. Kelly
17
v. White, 141 Wn. App. 128, 140, 168 P.3d 459 (2007). That person can be one
other than the accused. State v. Cantrell, 124 Wn.2d 183, 188 (1994).
A foreign decision involving the search of property after the death of the
property owner is State v. Libby, 546 A.2d 444 (Me. 1988). The state of Maine
charged Jeffrey Libby with the murder of his grandfather. Both Libby and the
grandfather resided in the same domicile at the time of the grandfather’s death.
Law enforcement found inculpatory evidence in the garbage at the residence. The
grandfather’s sister-in-law had authorized law enforcement to search the garbage
on the night of the murder. On appeal, Libby argued that the decedent’s sister-in-
law lacked authority to grant officers consent for a search. The Maine Supreme
Court disagreed and affirmed the conviction.
In his will, the grandfather devised his property equally to the sister-in-law
and Jeffrey Libby, but, more importantly, appointed the sister-in-law as the
personal representative of his estate. The Maine court followed Maine law that the
sister-in-law immediately became vested in a one-half interest in the victim’s real
estate, subject to the right of the personal representative to use the property to pay
creditors. As personal representative of the estate, the sister-in-law assumed the
additional power of taking possession of and control of the decedent’s property.
Although the Maine court does not mention these facts, the sister-in-law had yet to
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 39411-5-III
State v. Kelly
18
apply to the court for letters authorizing her to act as personal representative or an
order transferring ownership of the residence.
RCW 11.04.015 controls the descent and distribution of both real property
and personal property of a decedent lacking a will. Nichole Overton died without
a husband or children. Under RCW 11.04.015(2)(b), all of Overton’s property
passed to her parents, Phil and Laurie Overton. RCW 11.28.120(2) entitled the
parents of Nichole Overton to administer the estate. Thus, we conclude that Phil
and Laurie Overton had the right to control the cellphone and the right to authorize
and seizure and search after Nichole’s death.
Amber Kelly cites RCW 11.62.010(1) as instructing that Nichole Overton’s
parents did not gain ownership or control of the cellphone until forty days after the
death of Nichole. The statute declares:
Disposition of personal property, debts by affidavit, proof of death—
Contents of affidavit—Procedure—Securities.
(1) At any time after forty days from the date of a decedent’s death,
any person who is indebted to or who has possession of any personal
property belonging to the decedent . . . shall pay such indebtedness or
deliver such personal property, or so much of either as is claimed, to a
person claiming to be a successor of the decedent upon receipt of proof of
death and of an affidavit made by said person which meets the requirements
of subsection (2) of this section.
This statute does not address who has the right to control a decedent’s property during the
first forty days succeeding the death.
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 39411-5-III
State v. Kelly
19
In other settings, foreign courts have recognized that an heir of one dying intestate
has the right to take possession and control of the decedent’s assets at the time of death.
State v. Jessup, 279 N.C. 108, 181 S.E.2d 594 (1971). In Peterson v. Herndon, 221 So.
2d 615 (La. Ct. App. 1969), the Louisiana court noted that the transfer of title to property
occurs immediately on death. In an adverse possession suit, the court ruled that heirs by
intestate succession immediately took possession and ownership of the property on the
death of their father such that possession of the property continued uninterrupted. Noel v.
Jumonville Pipe & Machinery Co., 245 La. 324, 158 So. 2d 179 (1963). In State v.
Black, 193 Or. 295, 236 P.2d 326 (1951), our neighbor state’s high court adjudged a
decedent’s heirs entitled to possession of property from the date of death until the court
appointed a personal representative.
Based on the Colorado Probate Code, the daughter of the deceased, who died
intestate, became entitled to possession of the decedent’s property on the death. People
v. McCormick, 784 P.2d 808, 810 (Colo. App. 1989). The Colorado reviewing court
absolved the defendant of theft of property since the daughter had authorized the accused
to take the property.
Amber Kelly cites State v. Mathe, 102 Wn.2d 537 (1984) in support of her
argument that, even if Nichole Overton’s father owned the phone, Nichole still owned its
contents. In State v. Mathe, the court ruled that the landlord of an apartment lacked
authority to consent to search of the residence against the wishes of the tenant. Of
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 39411-5-III
State v. Kelly
20
course, the tenant remained alive at the time of the search. The decision lacks relevance
to permission to search the contents of a cell phone after the phone user’s demise.
Subsequent Conduct
When complaining that the superior court admitted evidence that she failed to visit
Nichole Overton’s parents after Nichole’s death, Amber Kelly assigns error to both
prosecutorial misconduct and the trial court’s decision to admit the evidence. We first
address the argument of prosecutorial misconduct.
Prosecutorial Misconduct
Amber Kelly contends that the State’s counsel attempted to inappropriately
conflate delivery of a controlled substance with murder by suggesting, numerous times,
that Kelly did not visit Nichole’s parents on the day she died because she had
“consciousness of guilt.” Kelly analogizes the State attorney’s tactic as infringing on an
accused’s right to remain silent, but does not directly assert the Fifth Amendment right.
The complaint of prosecutorial misconduct generally references remarks uttered
by the State’s attorney during voir dire, in the middle of trial before the jury, or during
comments delivered during opening or closing arguments. State v. Walker, 182 Wn.2d
463, 477, 341 P.3d 976 (2015); In re Personal Restraint of Glasmann, 175 Wn.2d 696,
712-13, 286 P.3d 673 (2012); State v. Pierce, 169 Wn. App. 533, 554, 280 P.3d 1158
(2012). Courts generally do not apply the concept to the introduction of evidence,
particularly when the trial court overrules the defendant’s objection to the evidence.
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 39411-5-III
State v. Kelly
21
Thus, we question the suitability of a contention of prosecutorial misconduct to purported
evidentiary error. We address rules of prosecutorial misconduct, nonetheless.
A defendant arguing that prosecutorial misconduct violated his or her right to a
fair trial has the burden of showing the prosecutor’s conduct was both improper and
prejudicial in the context of the entire trial. In re Personal Restraint of Glasmann, 175
Wn.2d 696, 704 (2012). When a defendant raises the issue for the first time on appeal,
the defendant must also show that the misconduct was so flagrant and ill-intentioned that
an instruction would not have cured the prejudice. State v. Walker, 182 Wn.2d 463, 477-
78 (2015). We do not focus on the prosecutor’s subjective intent in committing
misconduct, but instead on whether the defendant received a fair trial in light of the
prejudice caused by the violation of existing prosecutorial standards and whether that
prejudice could have been cured with a timely objection. State v. Emery, 174 Wn.2d 741,
762, 278 P.3d 653 (2012).
Although we agree with Amber Kelly that her failure to visit the parents lacked
relevance to the prosecution, we reject the claim of misconduct. The prosecutor asserted
a good faith argument in support of introduction of the evidence. As analyzed later, the
evidence caused only slight prejudice.
Relevance
Amber Kelly argues that the State’s testimony of her failure to visit Nichole
Overton’s parents on the day of or after Nichole’s death bore no relevance on whether
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 39411-5-III
State v. Kelly
22
she delivered a controlled substance to Nichole. Sometimes the prosecution seeks to
introduce evidence of the accused’s conduct after the alleged crime in an attempt to sway
the jury of the accused’s guilt because the conduct suggests a guilty mind. Flight from
the crime or from apprehension is a prime example. Actual flight is not the only
evidence in this category; evidence of resistance to arrest, concealment, assumption of a
false name, and related conduct are admissible if they allow a reasonable inference of
consciousness of guilt of the charged crime. State v. Bruton, 66 Wn.2d 111, 112-13, 401
P.2d 340 (1965); State v. Freeburg, 105 Wn. App. 492, 497-98, 20 P.3d 984 (2001).
When addressing the relevance of subsequent behavior, the court should consider
whether the evidence is necessary and relevant to prove an essential ingredient of the
crime charged. State v. Lew, 26 Wn.2d 394, 174 P.2d 291 (1946); State v. Messinger, 8
Wn. App. 829, 836, 509 P.2d 382 (1973). The subsequent misconduct must possess a
logical relationship with the question of the defendant’s guilt. State v. Messinger, 8 Wn.
App. 829, 836-37 (1973).
Subsequent conduct often carries only marginally probative value on the ultimate
issue of guilt or innocence. State v. Freeburg, 105 Wn. App. 492, 498 (2001). Thus, the
circumstance or inference of consciousness of guilt must be substantial and real, not
speculative, conjectural, or fanciful. State v. DeJesus, 7 Wn. App. 2d 849, 877, 436 P.3d
834 (2019); State v. Jefferson, 11 Wn. App. 566, 571, 524 P.2d 248 (1974).
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 39411-5-III
State v. Kelly
23
Many questions arise as to a logical relationship between the failure to visit the
parents and Amber Kelly’s guilt. We take judicial notice of Tekoa being a close-knit
farming community where most everyone knows everyone. The State suggests that, in
such friendly communities, many townspeople visit a decedent’s family at the family
home shortly, if not immediately, after the death. The State goes further and contends
that small-town American mores demanded that each townsperson visit Nichole
Overton’s parents. We question this suggestion. No witness testified to such a custom
prevailing in Tekoa. No one testified to moral standards of pastoral hamlets, and we
refuse to take judicial notice of any tradition to visit family of a deceased individual.
Many friends and neighbors choose not to visit at the decedent’s home in order to allow
the family privacy in which to grieve.
Phil Overton testified to many visitors in their home on May 23, but he did not
quantify the number. Neither parent provided any detail as to those who visited on May
23. All of the visitors may have been closer in friendship to the Overtons than Amber
Kelly. We also do not know the age of those who visited the Overtons or for how long
the Overtons had known their visitors. The record does not show that Ashley Schavolt,
the housemate of Nichole Overton visited the parents on May 23. Kelly was a young
adult and young adults may be less likely to express condolences in person. Kelly had
already expressed her sorrow when texting Laurie. Kelly may have considered the text
message sufficient in communicating her concern to the Overton family.
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 39411-5-III
State v. Kelly
24
Although Laurie Overton befriended Amber Kelly at the Tekoa Market, we do not
know if Kelly ever visited the Overton home before Nichole Overton’s death. We can
surmise that Kelly could have asked someone for the location of the Overton residence,
but still we do not know if Kelly knew of the situs.
O. J. Simpson attended the funeral of his deceased wife, Nicole Brown Simpson.
We question whether this conduct subsequent to the knifing of Brown and Ronald
Goldman bore relevance to Simpson’s innocence in murdering Brown. So too, we
conclude that any visit by Amber Kelly to the Overton residence would not tend to show
Kelly’s innocence. If she had visited and if Kelly thereafter argued the visit established
consciousness of innocence, the State would have argued that Kelly visited solely for the
purpose of pretending innocence. If visiting the family does not tend to show innocence,
failing to visit conversely should not be deemed pertinent to guilt.
One might argue that the jury should have heard the evidence and been given the
opportunity to ruminate as we have done. But the law wishes restraints on evidence so
that a jury does not base a decision on speculation. Salisbury v. City of Seattle, 25 Wn.
App. 2d 305, 322, 522 P.3d 1019 (2023).
The State cites no authority to support its position that an accused’s failure to visit
the decedent’s family bears any relevance to a drug delivery prosecution. This court only
finds two decisions, in which the court reviewed whether a failure to visit a location after
a crime held relevance to a prosecution. These two foreign cases help to distinguish
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 39411-5-III
State v. Kelly
25
between instances when failing to visit holds relevance and circumstances when
withholding a visit lacks relevance.
In Tyra v. State, 17 Ala. App. 92, 82 So. 631 (Ala. Ct. App. 1919), the State
prosecuted Joe Tyra for burglary and larceny of money taken from Rayburn’s house.
Rayburn testified that Tyra only visited him twice after the theft of the money and each
visit was at Rayburn’s request. Tyra had previously been a frequent visitor to the house.
The appellate court ruled the testimony of Tyra ceasing visits tended to prove the guilt of
Tyra.
Closer to modern times is State v. Scott, 330 S.C. 125, 497 S.E.2d 735 (S.C. Ct.
App. 1998). The State charged William Scott with stealing money from his employer.
After the employer noticed missing bank deposits entrusted to Scott, Scott did not visit
the employer’s store from which someone took the funds. The court deemed this fact
tantamount to flight from the scene of the crime and evidence of Scott’s guilty knowledge
and intent. The court noted the difficulty of proving fraudulent intent because the
perpetrator of the crime keeps his thoughts secret. Conduct, including subsequent
conduct, may unveil a guilty mind.
Joe Tyra’s and William Scott’s refusal to visit sites held relevance to guilt because
the crimes occurred at the place where each no longer visited. Tyra had frequently
visited Rayburn’s residence before. Scott worked at the place he no longer visited. None
of these facts emerge in the prosecution of Amber Kelly. In State v. Scott, the South
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 39411-5-III
State v. Kelly
26
Carolina court noted the trouble in proving the intent to embezzle. Conversely, the State
of Washington needed to only show that Amber Kelly intended to deliver drugs and that
she knew the drugs were controlled substances, which intent and knowledge the State
could easily prove by Facebook messages announcing the plan to give Nichole Overton
illicit drugs.
This court reviews trial court decisions to admit evidence for abuse of discretion.
State v. DeJesus, 7 Wn. App. 2d 849, 877 (2019); State v. Tien Thuy Ho, 8 Wn. App. 2d
132, 139-40, 437 P.3d 726 (2019). We might defer to the discretion of the trial court and
affirm the ruling under the general test of relevance found in ER 401 and 402. But,
because of the questionable relevance of subsequent conduct compared to its probity,
Washington law requires any link between the conduct and consciousness of guilt to be
substantial and real. State v. DeJesus, 7 Wn. App. 2d 849, 877 (2019); State v. Jefferson,
11 Wn. App. 566, 571 (1974). Because of no substantial and real logical connection
between Amber Kelly’s absence from the Overton residence and because of the lack of
need for the testimony, we hold that the superior court abused discretion when admitting
the evidence.
Despite finding error, we conclude the error was harmless. For such an error to
warrant reversal, it must prejudice the defendant. State v. McComas, 186 Wn. App. 307,
319-20, 345 P.3d 36 (2015). A defendant does not suffer prejudice unless, within
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 39411-5-III
State v. Kelly
27
reasonable probabilities, the trial’s outcome would have differed had the error not
occurred. State v. McComas, 186 Wn. App. 307, 320 (2015).
The jury could have discounted the failure to visit because of the sorrow expressed
by Amber Kelly in the text message to Laurie Overton. The State presented strong, if not
uncontradicted, evidence that Kelly gave fentanyl and hydrocodone to Nichole Overton
and that Kelly knew the nature of the drugs. The jury saw 27 pages of text and Facebook
messages among Ashley Schavolt, Nichole Overton, and Amber Kelly that discussed, in
part, Kelly supplying hydrocodone and other controlled substance to the other two ladies.
The State did not need to prove any other elements of the crime. The prosecutor did not
mention, during closing, that Kelly failed to visit the parents’ residence.
A majority of the panel having determined that only the foregoing portion of this
opinion will be printed in the Washington Appellate Reports and that the remainder
having no precedential value shall be filed for public record pursuant to RCW 2.06.040, it
is so ordered.
Sufficiency of Evidence
Amber Kelly argues that the State failed to provide evidence confirming that one
of the substances delivered to Nichole Overton was hydrocodone. According to Kelly,
the State must chemically test the substance in order to convict. Kelly argues that, due to
the failure to test the alleged hydrocodone, the State did not satisfy its burden of proof,
warranting reversal of Kelly’s conviction. She relies on State v. Colquitt, 133 Wn. App.
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 39411-5-III
State v. Kelly
28
789, 137 P.3d 892 (2006) to support her arguments. Alternatively, Kelly contends that,
even if the State need not perform scientific assaying, other evidence submitted by the
State did not prove beyond a reasonable doubt that she delivered hydrocodone to
Overton. We reject the evidence challenge.
This court reviews a challenge to the sufficiency of evidence by viewing the
evidence in the light most favorable to the State and asking whether any rational trier of
fact could have found the essential elements of the crime beyond a reasonable doubt.
State v. Treat, 109 Wn. App. 419, 426, 35 P.3d 1192 (2001); State v. Martinez, 123 Wn.
App. 841, 845, 99 P.3d 418 (2004). The State bears the burden of proving each element
of the charged offense beyond a reasonable doubt. State v. Colquitt, 133 Wn. App. 789,
796 (2006). To convict Amber Kelly of delivery of a controlled substance—
hydrocodone, the State had to prove that she (1) delivered hydrocodone and (2) knew the
delivered substance was controlled. State v. Martinez, 123 Wn. App. 841, 846 (2004).
In State v. Colquitt, 133 Wn. App. 789, 801 (2006), this court wrote:
Whether the State has met its burden of establishing the identity of
the items depends on a nonexhaustive list of factors, including: (1)
testimony by witnesses who have a significant amount of experience with
the drug in question, so that their identification of the drug as the same as
the drug in their past experience is highly credible; (2) corroborating
testimony by officers or other experts as to the identification of the
substance; (3) references made to the drug by the defendant and others,
either by the drug’s name or a slang term commonly used to connote the
drug; (4) prior involvement by the defendant in drug trafficking; (5)
behavior characteristic of use or possession of the particular controlled
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 39411-5-III
State v. Kelly
29
substance; and (6) sensory identification of the substance if the substance is
sufficiently unique.
In State v. Colquitt, this court held that circumstantial evidence consisting of a
police report containing an officer’s statement that a substance appeared to be rock
cocaine and field tested positive for cocaine was insufficient to sustain Mack Colquitt’s
conviction for possession of a controlled substance. This court noted that the State did
not send a sample of the field-tested substance to a crime lab to verify it as cocaine. This
court agreed that lay testimony and circumstantial evidence may suffice to establish the
identity of a controlled substance. Nevertheless, the officer’s field identification was
based on his conjecture, at best. The officer testified that the substance “‘appeared to be
rock cocaine.’” State v. Colquitt, 133 Wn. App. 789, 800 (2006). He did not testify to
any details of the appearance.
According to Amber Kelly, the evidence presented by the State in her case
parallels that presented by the State in Colquitt because the evidence against her
consisted entirely of speculation and lacked confirmatory testing. Kelly also cites
Colquitt for the rule that, in circumstances when the State fails to conduct laboratory tests
on a controlled substance, a conviction may be sustained only with an independent field
test and a confession. She highlights that she did not confess and law enforcement
conducted no field test.
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 39411-5-III
State v. Kelly
30
This court in Colquitt announced no rule that required both a confession and a
field test. Instead, this court ruled that the occurrence of both presents only one manner
by which the State can convict.
The State presented evidence against Amber Kelly that exceeded conjecture.
Deputy Bryce Nebe testified, based on his experience, that hydrocodone comes in a
white, oval shape. Ashley Schavolt asked Kelly to sell her two hydrocodone pills and
paid Kelly for the pills over Facebook. Nichole Overton gave Schavolt two hydrocodone
pills and said they were from Kelly. The two pills Nichole gave Schavolt were white,
oval pills. Kelly was Schavolt’s only source of hydrocodone at the time of Nichole’s
death. Schavolt had been prescribed hydrocodone for oral surgeries, she had taken the
drug for two to three years, and she knew its effects on her body. Schavolt felt the same
way when she took the pills Nichole gave her.
The clincher comes from a Facebook message sent by Amber Kelly to Nichole
Overton on May 22, 2021 at 11:08 pm:
I have 1 I can give regardless, so hopefully I get them so you can
have your 2. And Ashley is getting 2 dros if you could give them to her.
Ex. 134. A lab test performed on one of the two straws Deputy Nebe discovered in
Nichole’s bedroom tested positive for the presence of hydrocodone.
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 39411-5-III
State v. Kelly
31
Appeal Bond
Amber Kelly argues that the trial court abused its discretion by failing to follow
CrR 3.2(h) when deciding her motion for an appeal bond. This court reviews a trial
court’s decision on a motion for an appeal bond for an abuse of discretion. State v. Smith,
84 Wn.2d 498, 505, 527 P.2d 674 (1974).
CrR 3.2 declares in relevant part:
Release After Finding or Plea of Guilty. After a person has been
found or pleaded guilty, and subject to RCW 9.95.062, 9.95.064, 10.64.025,
and 10.64.027, the court may revoke, modify, or suspend the terms of
release and/or bail previously ordered.
(Boldface omitted). RCW 9.95.062(1) reads:
Notwithstanding CrR 3.2 or RAP 7.2, an appeal by a
defendant in a criminal action shall not stay the execution of the judgment
of conviction, if the court determines by a preponderance of the evidence
that:
(a) The defendant is likely to flee or to pose a danger to the safety of
any other person or the community if the judgment is stayed; or
(b) The delay resulting from the stay will unduly diminish the
deterrent effect of the punishment; or
(c) A stay of the judgment will cause unreasonable trauma to the
victims of the crime or their families; or
(d)The defendant has not undertaken to the extent of the defendant’s
financial ability to pay the financial obligations under the judgment or has
not posted an adequate performance bond to assure payment.
Although the trial court must find one of the requirements listed above when
deciding a motion on an appeal bond, this reviewing court will not find an abuse of
discretion when we can infer, from the available record, that the trial court would have
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 39411-5-III
State v. Kelly
32
made the required finding. State v. Smith, 84 Wn.2d 498, 506 (1974); State v. Hanson,
14 Wn. App. 625, 633-34, 544 P.2d 119 (1975).
The trial court conducted a separate hearing on the request for release based on an
appeal bond. When reviewing the record from the hearing, we infer that the court
believed Amber Kelly’s release to pose a danger to society because the court stated that
society needed to be protected from drug dealers. The court commented that Kelly’s
“offenses must be taken seriously,” that “there must be accountability to those that deal
drugs and to those that sell drugs,” and that “sellers have to accept the responsibility and
the results.” RP at 396-97. From these statements, reasonable minds could infer that the
trial court would have found Kelly to pose a danger to society.
CONCLUSION
We affirm Amber Kelly’s convictions for delivery of a controlled substance.
_________________________________
Fearing, J.
WE CONCUR:
______________________________
Staab, A.C.J.
______________________________
Cooney, J.
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.