December 1, 2017 at 4:25 p.m.
Judge dismisses one count against doctor in toddler death case
Judge dismisses one count against doctor in toddler death case
By By Heather Schaefer and Jamie Taylor-
Tran, 40, was charged Sept. 20 with failure to act to prevent reckless causing of great bodily harm to a child and child neglect resulting in death. According to the criminal complaint, Edwards became unresponsive April 14 while visiting his father and stepmother in Newbold. He died April 15 at a hospital in Marshfield.
In its complaints against both Dr. Tran and his wife, Ellen Tran, 29, the state has set forth a theory that Ellen Tran caused the death of her stepson and Dr. Tran, who now has a Minocqua address, bears legal responsibility for failing to protect the boy.
Dr. Tran's defense team filed a motion Oct. 27 challenging the sufficiency of the complaint and requesting both counts be dismisssed.
"The criminal complaint is full of conclusory statements and innuendo, but lacking in factual allegations to support critical elements of both of the charged crimes," the defense argued.
Following a roughly 30-minute hearing Thursday afternoon, Oneida County circuit judge Michael Bloom agreed with the defense that the state's complaint does not include sufficient information to support the first count - failure to act to prevent reckless causing of great bodily harm to a child.
One of the elements of that charge is "the defendant knew or believed that (the person the state believes is responsible for the child's death) recklessly caused great bodily harm to the child.
While defense attorney Michael Guerin conceded that the complaint includes some information indicating there may have been problems in the Tran marriage and that Ellen Tran may have had some difficulties in caring for her stepson, he argued the references are too remote in time to when the child died.
"Nobody has suggested that Trung Tran had anything to with death of this child," Guerin said. "The question is whether or not he was negligent in leaving the child in the custody of his wife Ellen on the date of the child's death."
"I respectfully suggest that this particular complaint issued in this particular matter at this time does not meet the standard necessary (for this matter to go forward)," he added.
Oneida County district attorney Mike Schiek argued the full picture presented in the complaint establishes that Dr. Tran should have known it was unsafe to leave the boy with his stepmother on April 14.
"The reason those other dates and those other years are contained within that police report, judge, is because you have to take everything into context," he said. "If you look at a single day in the life of Mr. Tran, Dr. Tran, you don't get to see the full picture, but when you enlarge it and go back to these other days it establishes, I think, the state's burden to show negligence or failure to act. You can't get a picture of that until you pull back a little bit and you see all these others incidents...."
"The state's theory is that when (Dr. Tran) left for work on April 14 everything that he was aware of up to that date and time put him on notice that something could happen to the victim (at Ellen's hand)," he added.
Bloom then read from the jury instructions for the first count and noted that one of the elements the state has to prove is that there was prior conduct on the part of the principal (Ellen Tran, according to the state's theory of this case) of which Dr. Tran was aware, that resulted in great bodily harm to Avery Edwards.
In other words, there has to be evidence that there was an occasion prior to the evening of April 14 where Ellen Tran caused great bodily harm to Avery Edwards and Dr. Tran has to have been aware of the incident.
"I'm not aware of any evidence in the complaint that great bodily harm had been caused to the victim at any point prior to the events (of April 14) that underly these charges and therefore the timing factor is legally significant," Bloom concluded.
He then dismissed the first count. However, the case against Dr. Tran will move forward as Bloom found there is sufficient information in the complaint to support the second count.
A preliminary in this case is set for Jan. 26.
The case began with a hang-up 9-1-1 call from the Tran residence the evening of April 14.
When a dispatcher called back, Ellen Tran reported that Edwards, who was visiting from Virginia, was unresponsive and had stopped breathing. According to the original detective's report, Edwards was transported by ambulance from the Tran residence in Newbold to Ascension St. Mary's Hospital in Rhinelander and then flown to St. Joseph's Hospital in Marshfield where he passed away just after midnight on April 15.
At approximately 4:15 p.m. April 17, the Oneida County sheriff's office announced Ellen Tran had been arrested on suspicion of second-degree reckless homicide in connection with the boy's death. She made her initial appearance in Oneida County Circuit Court April 18 at which time she was formally charged with second-degree reckless homicide.
That charge was amended to first-degree reckless homicide months later following a preliminary hearing featuring testimony from Fond du Lac County medical examiner Doug Kelley.
Kelley testified the boy's death was the result of blunt force trauma to the head and reviewed the areas of the child's body where he found either bruises or contusions. In addition to the boy's head, he said he found bruising on the child's back, buttocks, knees, forearms and chest. He also testified that the child had no head or rib fractures or signs of healed old fractures.
According to testimony at the preliminary hearing, the state also has photos of the boy, taken by Lori Edwards before her son left Virginia for the visit with the Trans, that show no injuries.
The boy's injuries were not consistent with Ellen Tran's claim that he fell in the shower, the medical examiner added.
In an interview with investigators, Ellen Tran said the boy became unresponsive after falling in the shower. She said she could not remember how the boy fell but knew that he had.
A not guilty plea has been entered in Mrs. Tran's case and a status conference is set for February.
In its complaint against Dr. Tran, the state alleges the doctor knew his wife harbored deep animosity toward his son and that she was abusing substances. The state further argues Tran knew that leaving his son with his wife was a risk to his welfare and chose to do so anyway, although he had other options.
"Trung was the only person that could protect (Avery) from Ellen and was responsible for (Avery's) safety. Had Trung not left (Avery) in Ellen's care, (Avery) may still be alive," the complaint states.
In its motion, the defense argued the complaint contains no allegations that would support a finding of probable cause that Dr. Tran knew or believed that Ellen intended to cause great bodily harm to Avery, if she caused his death.
"Other than the allegations that Trung allegedly had argued with Ellen regarding drug and alcohol abuse, there is absolutely no factual allegations in the complaint to support the State's contention that Trung knew or believed that Ellen intended to cause great bodily harm to (Avery)," the brief states.
The defense further argued that Tran was not physically capable of taking action to prevent the great bodily harm from occurring, if the state can prove Ellen caused it, because he was at work at the time.
"It is obvious from the facts in the criminal complaint that the State believes that Ellen caused (Avery's) death by blunt force trauma to the head," the brief states. "At the time of the alleged attack on (Avery), the facts as alleged establish that Trung was 7.2 miles from where the attack occurred, at St. Mary's Hospital, where he was working as a doctor. Trung's distance from the alleged attack on (Avery) shows that he was not physically able to prevent the attack from occurring."
Lori Edwards attended Thursday's hearing and released a statement afterward.
"I would like for it to be known that I have been present at all preceedings possible and will continue to be here in support of getting my son Avery the justice that he deserves," she said. "My heart is broken by what they have done and I know that nothing will ever make this right, but I pray for justice every day. I realize that this is going to be a very long road and I do want to thank everyone for all of their continued thoughts, support and prayers."
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