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NOT DESIGNATED FOR PUBLICATION

No. 124,371

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellant,

v.

BRODY JOE KAHLE,

Appellee.

MEMORANDUM OPINION

Appeal from Cowley District Court; NICHOLAS ST. PETER, judge. Opinion filed January 27, 

2023. Reversed and remanded with directions.

Ian T. Otte, deputy county attorney, and Derek Schmidt, attorney general, for appellant.

Patrick H. Dunn, of Kansas Appellate Defender Office, for appellee.

Before MALONE, P.J., HURST and COBLE, JJ.

PER CURIAM: The State appeals the district court's dismissal of a felony theft 

charge filed against Brody Joe Kahle after finding that the State failed to present 

sufficient evidence at the preliminary hearing to establish probable cause that Kahle 

committed the offense. Based on our review of the record, we find that the State 

presented sufficient circumstantial evidence at the preliminary hearing for a person of 

ordinary prudence and caution to conscientiously entertain a reasonable belief that Kahle 

committed felony theft. Thus, we reverse the district court's dismissal of the felony theft 

charge and remand with directions for the district court to reinstate the charge.
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FACTS

On May 1, 2019, Barry and Noreen Patton threw a party at a house they owned in 

Winfield, Kansas. Kahle and his wife, Nicole, were staying in the house next door; the 

house was owned by a woman named "Mae." On the morning of the party, Kahle asked 

Noreen if he could "borrow some electricity" to jump-start his van. Noreen obliged, 

telling Kahle "that that would be fine" and letting him run an extension cord from an 

exterior outlet on the backside of their detached garage to Kahle's van.

Later that day, Noreen and Barry noticed that the extension cord was not 

connected to Kahle's van—it was now running into the house. That situation was not 

acceptable to the Pattons, so Noreen disconnected the extension cord. Later that evening, 

Barry turned off the breaker inside the garage so that Kahle would be unable to use the 

outlet on the exterior wall of the garage. Barry then locked up the garage to the extent 

possible, although the latch on one of the garage doors was not secure.

The next morning, the Pattons were preparing to leave the country for an event 

because Barry is a renowned player of "[r]hythm bones"—an antique percussion 

instrument made of wood and bone—and often travels for "workshops . . . to show 

people of the world how to play them[.]" Before leaving, the Pattons noticed that their 

garage "had been broken into." Barry explained that "the door had been slit open to the 

front of the garage, and put back, but not latched." Barry soon discovered the circuit 

breaker had been turned back on and many items of property were missing from the 

garage. The missing items included lighting and stage equipment, bottles of liquor, and a 

suitcase that contained clothing, CDs, and several sets of "bones." The estimated value of 

the missing property was more than $5,000. The Pattons then called the police to report 

the incident. When the police arrived, the Pattons reported the details and suggested that 

their neighbor, Kahle, was a likely suspect.
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Later that morning, Noreen spoke with Brandon Faber, a handyman for Mae who 

was working in Kahle's backyard. Faber stated that Mae had asked him to clean up the 

backyard of the house that morning, and while doing so, he found an extension cord in 

the shed with "all kinds of electronics and stuff," including, cords, concert and stage 

lighting, and other stage props. Faber found "most of the Patton's missing property in the 

shed . . . and under tarps in the yard." Faber assured the Pattons that he was not 

responsible for the theft and that he had never been in the shed before that day.

After the property was recovered, Deputy Brian Shepard returned and began 

investigating the crime. Shepard soon learned that Kahle had recently been arrested for an 

unrelated incident, so he went to the jail to speak with him. After waiving his Miranda

rights, Kahle told Shepard that the Pattons had let him "borrow some electricity" to get 

his car running, but he had moved the extension cord to the inside of his house so he 

could power his refrigerator. Although Kahle admitted that he had continued to use the 

extension cord after the Pattons told him he was not allowed to do so, he denied entering 

the garage, claiming he simply plugged the cord back into the exterior outlet after Noreen

had unplugged it. Kahle also denied knowing anything about the Pattons' items of 

property that were found in his shed and under tarps in his yard.

On October 3, 2019, the State charged Kahle with nonresidential burglary and 

felony theft. The district court began the preliminary hearing on January 26, 2021, but 

because of an officer's illness, the district court completed the hearing on March 11, 

2021. The State presented no evidence at the preliminary hearing that anyone saw Kahle 

in the Pattons' garage or removing their property. After hearing the evidence, the district 

court found probable cause to bind Kahle over for trial on the nonresidential burglary 

charge but not the felony theft charge. The district court explained:

"Regarding the offense of theft, it's a little bit murkier. While I agree with the 

state that a reasonable inference could be made, I think the best reasonable inference 
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could be that someone associated with the property next door removed the items that 

were listed, and that were taken, primarily because they were found at that location and 

were covered up. And because, while the time period—we're talking about a pretty short 

time period, probably 12 hours or so—from when Mr. Patton locked everything up, and 

when the next morning it was discovered that items were missing.

"And again, they were found over on the property associated with Mr. Kahle. So 

essentially we have a reasonable inference that Mr. Kahle was in the garage; that he 

entered without permission; that he had taken electricity; that we have the items that were

found over on property associated with him that was covered up. What we're missing is a 

little bit about whether or not it was Mr. Kahle that moved those items and property, or 

perhaps someone else associated with it."

The State filed a written motion for the district court to reconsider its ruling. At a 

hearing on April 19, 2021, the district court reiterated its finding that the State had failed 

to establish probable cause to support the felony theft charge, but the district court did 

find that the State had provided sufficient evidence to support a charge for "misdemeanor 

theft of electricity." The State requested dismissal of the remaining charges, which the 

district court granted without prejudice. The State then brought this appeal.

ANALYSIS

On appeal, the State claims the district court erred in finding that the State 

presented insufficient evidence at the preliminary hearing to establish probable cause that 

Kahle committed felony theft. The State asserts that Kahle's admission to using the 

Pattons' electricity after the breaker inside the garage had been shut off and the location 

of the stolen items would lead a reasonable person to believe that Kahle committed the 

offense. Kahle asserts the district court correctly dismissed the felony theft charge after 

finding the State failed to show probable cause. An appellate court exercise unlimited 

review when analyzing a district court's probable cause finding at a preliminary hearing.

State v. Rozell, 315 Kan. 295, 305, 508 P.3d 358 (2022).
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Before being bound over for trial, "every person charged with a felony shall have a 

right to a preliminary examination before a magistrate, unless such charge has been 

issued as a result of an indictment by a grand jury." K.S.A. 2021 Supp. 22-2902(1). The 

magistrate shall then bind the defendant over for trial if the evidence shows that (1) a 

felony has been committed and (2) there is probable cause to believe that the accused 

committed the crime. K.S.A. 2021 Supp. 22-2902(3); State v. Washington, 293 Kan. 732, 

733, 268 P.3d 475 (2012). If the magistrate finds there is not probable cause to believe 

the defendant committed the charged crime, then the magistrate "shall discharge the 

defendant." K.S.A. 2021 Supp. 22-2902(3).

"'Probable cause at a preliminary examination signifies evidence sufficient to 

cause a person of ordinary prudence and caution to conscientiously entertain a reasonable 

belief of the accused's guilt.'" Rozell, 315 Kan. at 305. This is not a strenuous evidentiary 

standard. To determine whether the State has met this burden, the magistrate does not 

pass on the credibility of the witnesses, and when the evidence conflicts, the magistrate 

must accept the version most favorable to the State. 315 Kan. at 305. It is not the 

province of the district court "to determine the wisdom of the decision to file charges or 

to determine whether the possibility of a conviction is likely or remote." State v. 

Anderson, 270 Kan. 68, 71, 12 P.3d 883 (2000).

Kansas courts have long held that a conviction for even the gravest offense may 

stem from circumstantial evidence. See, e.g., State v. Banks, 306 Kan. 854, 858, 397 P.3d 

1195 (2017). Thus, circumstantial evidence may support a probable cause finding.

"[C]ircumstantial evidence affords a basis for a reasonable inference by the [fact-finder] 

regarding a fact at issue." State v. Logsdon, 304 Kan. 3, Syl. ¶ 3, 371 P.3d 836 (2016). A 

fact-finder may "infer the existence of a material fact from circumstantial evidence, even 

though the evidence does not exclude every other reasonable conclusion or inference."

State v. Scaife, 286 Kan. 614, 618, 186 P.3d 755 (2008).
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The crime involved here, felony theft under K.S.A. 2018 Supp. 21-5801(a)(1) and 

(b)(3), required the State to provide evidence that Kahle obtained or exerted unauthorized 

control over property of a value of at least $1,500 with an intent to permanently deprive 

the owner of its possession, use, or benefit. The parties' sole focus is whether there was 

sufficient evidence to find that Kahle was the individual who took the property from the 

Pattons' garage—that is, evidence of Kahle's identity as the perpetrator. Identity of the 

perpetrator of an offense is an element of every crime in Kansas. See State v. Maggard, 

16 Kan. App. 2d 743, 752, 829 P.2d 591 (1992) (explaining that K.S.A. 60-455 evidence 

was relevant because the identity of the defendant was an element of the crime).

The district court found that the only evidence that Kahle stole the property from 

the garage was circumstantial. The State readily concedes this point. But it still contends 

that the evidence it presented was sufficient for a person of ordinary prudence and 

caution to entertain a reasonable belief that Kahle committed the theft. The incriminating 

circumstances linking Kahle to the theft include:

• Barry Patton turned off the circuit breaker in the garage on the night of May 

1, 2019;

• The only way to power the exterior power outlet was by turning the breaker 

inside the garage back on;

• Barry locked the garage to the extent possible that evening; the garage 

could still be opened because one of the latches was not secure;

• The garage was broken into sometime between the night of May 1 and the 

morning of May 2 and more than $5,000 worth of property was taken;

• The circuit breaker was turned back on when the Pattons discovered the 

break-in;

• Kahle admitted that he used the Pattons' electricity through an extension 

cord plugged into the exterior garage outlet without permission even after 
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Noreen Patton had unplugged the extension cord and Barry Patton had 

turned off the breaker inside the garage;

• The extension cord was running into the house where Kahle was staying; 

and

• The Pattons' missing property was found in a shed located on the property 

Kahle was occupying as well as under tarps in the yard.

The district court found from this evidence that "we have a reasonable inference 

that Mr. Kahle was in the garage; that he entered without permission; that he had taken 

electricity"; but there was insufficient evidence to find probable cause that Kahle took the 

property inside the garage. But if there was a reasonable inference that Kahle broke into 

the garage to turn the electricity back on—and there was—then there was also a 

reasonable inference that Kahle took the property that was found a short time later in the 

shed and under some tarps in the backyard of the house where Kahle was staying. This 

evidence was sufficient to establish probable cause at the preliminary hearing that Kahle 

committed the theft.

In finding the State's evidence was insufficient for probable cause, the district 

court focused on the fact that someone else could have committed the theft: "What we're 

missing is a little bit about whether or not it was Mr. Kahle that moved those items and 

property, or perhaps someone else associated with it." Indeed, some evidence at the 

preliminary hearing cast suspicion on Faber, the handyman for Mae who was working in 

the backyard and discovered the missing property. But the State's evidence to support 

probable cause of the accused's guilt at a preliminary hearing need not rule out every 

other reasonable possibility of how the crime was committed. Scaife, 286 Kan. at 618.

Kahle argues there was no direct evidence that he entered the Pattons' garage, so 

the district court would have needed to engage in impermissible inference stacking to 

find that he committed the theft. He contends the inference that he broke into the garage 
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to turn the electricity back on cannot be used to support an inference that he took the 

property from the garage.

The Kansas Supreme Court has stated that "convictions based entirely upon 

circumstantial evidence '"can present a special challenge to the appellate court"' because 

'"the circumstances in question must themselves be proved and cannot be inferred or 

presumed from other circumstances."' [Citations omitted.]" Banks, 306 Kan. at 859. That 

is, Kansas courts will not countenance a conviction when the defendant's guilt relies on

inferences that are built upon other inferences. But Kansas cases applying the rule against 

inference stacking consistently focus on guilt determinations made at trial, where the 

State's burden of proof is beyond a reasonable doubt. See State v. Valdez, 316 Kan. 1, 11, 

512 P.3d 1125 (2022) ("When the State asks a jury to make a presumption based on other 

presumptions, it does not carry its burden to present sufficient evidence to sustain a 

criminal conviction."); State v. Aguirre, 313 Kan. 189, 219, 485 P.3d 576 (2021) (finding 

jury did not rely on impermissible inference stacking in finding defendant guilty at trial); 

State v. Colson, 312 Kan. 739, 753, 480 P.3d 167 (2021) (same); State v. Gibson, 311 

Kan. 732, 743-44, 466 P.3d 919 (2020) (same); State v. Gonzalez 311 Kan. 281, 288-89, 

460 P.3d 348 (2020) (same); Banks, 306 Kan. at 859 (same). Kahle provides no authority 

to support the proposition that the rule against inference stacking applies to a probable 

cause finding at a preliminary hearing.

Based upon the evidence presented at the preliminary hearing, the district court

reasonably inferred that Kahle entered the garage on the night in question to flip the 

breaker back on. The district court also could have reasonably inferred that Kahle stole 

the items from inside the garage because they were found a short time later in the shed 

and under some tarps in the backyard of the house where Kahle was staying. These are 

separate reasonable inferences to support a probable cause finding for each charge at the 

preliminary hearing, and we do not necessarily agree with Kahle's argument that the 

district court would have needed to engage in impermissible inference stacking to find 
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that Kahle committed felony theft. But in any event, the rule in Kansas on impermissible 

inference stacking only applies to evidence sufficient to support a conviction beyond a 

reasonable doubt; it does not apply to a probable cause finding made by a magistrate at a 

preliminary hearing.

In sum, Kahle admitted to using the Pattons' electricity after the power to the 

exterior outlet had been turned off. To do so, Kahle presumably entered the garage that 

night or early the next morning to flip the breaker back on. Around this same time, 

property was stolen from inside the garage, and those stolen items were found a short 

time later in the shed and under some tarps in the backyard of the house where Kahle was 

staying. We conclude the State presented sufficient circumstantial evidence at the 

preliminary hearing for a person of ordinary prudence and caution to conscientiously 

entertain a reasonable belief that Kahle was the person who stole the property from the 

Pattons' garage. Thus, we reverse the district court's dismissal of the felony theft charge 

and remand with directions for the district court to reinstate the charge.

Reversed and remanded with directions.