State v. Kelly

1

STATE OF WASHINGTON, Respondent, v. AMBER DAWN KELLY, Appellant.

No. 39411-5-III

Court of Appeals of Washington, Division 3

September 10, 2024

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.

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 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 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 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.

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.

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

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