Case of ex-restaurateur’s pot grow could hinge on missing evidence
A digital scale, a gun and a large amount of cash inside two alleged “pay-owe” envelopes that now are missing: Those pieces of evidence, along with several pounds of marijuana bud and 80 plants, are the basis of Nevada County’s case against Cascade Shores resident Eric Engstrom.
In closing arguments Thursday, Deputy District Attorney James Phillips said that evidence proves Engstrom is guilty of possessing marijuana for sale and unlawfully growing marijuana.
But the loss of those items and “sloppy police work” should raise enough questions in jurors’ minds to acquit Engstrom, his attorney Stephen Munkelt said.
Munkelt argued Engstrom has an innocent explanation for the pot and cash: his need for medical marijuana and the closure of his struggling business.
The decision as to which interpretation is true now rests with the jury, which began deliberating Thursday afternoon.
Engstrom, the former owner of the since-closed Dos Banditos eatery in Nevada City, was charged after Nevada County narcotics task force found a cultivation set-up with about 80 marijuana plants and 2 1/2 pounds of buds during a Feb. 20, 2009, search of his home.
Thursday, Engstrom testified he had had a medical recommendation since 1999, for up to 2 ounces a week, and typically ingested marijuana in baked goods. He said he used the scale to weigh the amounts, because he didn’t want to overdose.
He said he had nearly $15,000 in cash in his bedroom because he was closing down his failing restaurant. He kept the money out of his bank account because the state Board of Equalization had placed a lien on the business and he was trying to pay off his purveyors, he said.
He added the gun was a Ruger revolver given to him by his grandfather.
Phillips asked Engstrom why he had allowed his medical recommendation to lapse in 2007.
“I wouldn’t say I allowed it to lapse,” Engstrom replied. “It lapsed.”
He testified in his preliminary hearing that he forgot to renew it.
Munkelt brought in an expert witness, “cannabis consultant” Jason Browne, to testify regarding the potential yield of Engstrom’s growing operation.
Browne agreed with Engstrom that the hydroponics setup covered about 70 square feet, including the “vegetative canopy.” He testified that the grow operation, based on its size and the amount of light being provided, would yield an average of 2.7 pounds of marijuana “cola” at the high end of a harvest. An average yield by an inexperienced gardener would be about half that, Browne said.
After examining the marijuana seized as evidence, Browne said a Tupperware container labeled as “keef,” or crystallized marijuana, actually was ground-up shake, or leaves, and could not be counted as usable marijuana. He said the total amount of marijuana was 2.98 pounds, plus 1.34 pounds of shake.
Browne also testified that the amounts of marijuana cola in the Ziploc bags did not correspond to the amounts that typically would be purchased by customers at a dispensary, and that most marijuana is packaged for sale in vacuum-sealed bags.
“Isn’t is possible people get shorted a little bit?” Phillips asked, further arguing that the marijuana might have been for sale outside legal channels.
In closing arguments, Munkelt said he did not dispute Eric Engstrom possessed a usable amount of marijuana.
“There’s no doubt about that,” he said. “The only element that is at issue is whether Mr. Engstrom intended to sell it.”
Munkelt argued the evidence used by the prosecution – the cash, the scales and the packaged cola – could not prove possession for sale beyond a reasonable doubt.
The second charge, that of unlawful cultivation, also could not be proved beyond a reasonable doubt, he said.
The cultivation of marijuana is lawful if a physician provides a written or oral recommendation, and Engstrom clearly had oral approval from his physician, Munkelt said. He argued the medical defense would also apply to a lesser charge of possession of more than one ounce of marijuana that the jury must consider if it finds Engstrom not guilty of possession for sale.
Munkelt called the evidence collected by the narcotics task force into question, terming it “incredibly sloppy police work” and referring to a “cavalier approach” by law enforcement that included losing the envelopes that contained the cash, an alleged discrepancy of $500 in the amounts in the envelopes and several alleged acts of vandalism and “disrespect.”
In Phillips’ rebuttal, he acknowledged that evidence was lost, but told the jury that “doesn’t entitle the defendant to get off Scott-free.”
“Reasonable doubt is a high standard,” he said. “But reasonable doubt does not mean beyond all possible doubt.”
The jury is slated to resume deliberations this morning.
Contact Staff Writer Liz Kellar at firstname.lastname@example.org or (530) 477-4229.
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