DA files appeal in Engstrom pot case | TheUnion.com

DA files appeal in Engstrom pot case

A Nevada City man’s pot conviction remains in limbo – and could drag on for at least a year.

Eric Engstrom’s legal quagmire started after he was found guilty in March of unlawfully growing marijuana. The verdict was set aside by Nevada County Superior Court Judge Candace Heidelberger after she found clear evidence of misconduct by the jury, but the Nevada County District Attorney’s Office has filed a notice of appeal with the state of California.

The District Attorney’s Office “is asking the Court of Appeals to find Judge Heidelberger abused her discretion in granting a new trial,” said Engstrom’s defense attorney, Stephen A. Munkelt of Nevada City. “That would reinstate his conviction.”

“The (state) Attorney General’s office has agreed to take over the appeal,” said Nevada County Deputy District Attorney James Phillips, who prosecuted the case. “They don’t have to, but it’s not unusual in felony cases. The trial court here will transfer the notice of appeal to the district court.”

Engstrom, the former owner of the since-closed Dos Banditos eatery in Nevada City, was acquitted of possessing marijuana for sale, but convicted of unlawful cultivation in a split decision.

The amount of marijuana found and the potential yields of Engstrom’s hydroponic garden were big factors in the jury’s decision – and the major factor in Heidelberger’s decision to grant a new trial.

After the trial, jurors said expert witness testimony from “cannabis consultant” Jason Browne that provided yield calculations was incorrect – so they used their own calculations, which estimated a higher yield.

Munkelt said he was “confident” the court would rule against the appeal, which could take a year or more.

The District Attorney’s Office could then opt to re-try Engstrom, but Munkelt said he hoped it would decide it was not worth the time and resources to push for a new trial. Engstrom could only be tried on the one count of unlawful cultivation.

“We’d make that decision” after the appeal is either granted or denied, Phillips said.

Engstrom next will be in court at 9 a.m. Sept. 7.

Contact Staff Writer Liz Kellar at lkellar@theunion.com or (530) 477-4229.

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