May 10, 2017 at 3:51 p.m.
Defense files motion to dismiss complaint in toddler death case
DA says additional reports to be filed
Defense files motion to dismiss complaint in toddler death case
By By Jamie Taylor and Heather Schaefer-
Amy C. Scholz filed the four-page motion in Oneida County Circuit May 5, 17 days after she told Oneida County Circuit Judge Patrick O'Melia her client, Ellen Tran, planned to challenge the charge.
In her motion, she argues "the criminal complaint fails to allege any facts or conduct by Ms. Tran that would show probable cause that she caused the death of (her stepson Avery J. Edwards) or that she caused the death by criminally reckless conduct."
"The State bears the burden of proof to show probable cause within the criminal complaint," the motion states. "Because it fails to do so, the Defense respectfully moves the Court to dismiss the criminal complaint for failing to sufficiently state probable cause within its four corners."
According to court records, the sheriff's department received a 9-1-1 call at approximately 6:24 p.m. April 14 reporting a 20-month-old boy was breathing very shallowly.
Deputies and medics responded the scene and transported the child, later identified as Avery J. Edwards, to Ministry St. Mary's Hospital in Rhinelander.
Edwards was then flown to St. Joseph's Hospital in Marshfield where he passed away a short time later.
At approximately 4:15 p.m. April 17, the department announced 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, a Class D felony which carries a maximum sentence of 25 years in prison.
According to the criminal complaint, the child's cause of death was listed as blunt force trauma to the head in a preliminary autopsy report. The complaint also refers to a "bleed" in the child's brain and includes a statement from a doctor at St. Joseph's Hospital in Marshfield attesting that the child's injuries do not match the information supplied by his stepmother.
The complaint states the investigation began with a hang-up phone call from the Tran residence in Newbold the evening of April 14. When the dispatcher called back, Ellen Tran reported that her stepson had not been acting right since she got him out of the bath. She was directed to perform CPR on the child and medics were dispatched to the scene.
According to the complaint, Tran told authorities the boy fell in the shower. However, the boy's father, Dr. Trung T. Tran, told investigators he didn't know why his wife would have bathed the child as he had bathed him earlier in the day. He also noted the boy did not like running water and reported the boy and his wife were "not bonding well" and the boy always wanted to be with him when he was home.
According to the complaint, Dr. Tran told investigators he left for work between 5:30 and 5:45 p.m. and learned that his son was at the hospital when he got to work. He told police the boy hadn't been eating well since the visit began on April 1 and he had a respiratory infection. Trung also said (the boy) "was clumsy and had some bruising on his legs."
In her interview with investigators, Ellen Tran said she could not remember how the child fell in the shower but knew that he had. She also said she was caring for her nine-year-old and 15-month-old children, as well as her stepson, at the time.
In an interview with law enforcement, the boy's mother, who resides in Virginia, advised that "she knew this was going to happen," the complaint states.
The mother's child custody attorney contacted investigators to report that there had been a temporary restraining order (TRO) placed against Ellen Tran preventing her from having contact with the boy. The attorney said the TRO had recently been lifted but an appeal of that decision was set to be heard April 20 in Virginia, the complaint states.
The attorney said the TRO was sought after bruising was found on the boy after he was returned from his last visit with his father and Ellen Tran had been the primary caregiver during that visit.
According to the complaint, it had been approximately 10 months since Dr. Tran had visitation with his son.
In court April 18, Scholz requested a hearing on a motion to dismiss the complaint. O'Melia set a preliminary hearing for 1:30 p.m. May 25 and advised he will hear the motion to dismiss at that time.
In her motion, Scholz argues "the complaint is insufficient for two reasons under the law: 1) it fails to allege any action on the part of Ms. Tran that caused the death of (Avery Edwards); 2) it fails to allege action or conduct that could be considered criminally reckless as defined in Wisconsin Statute 939.24 (1)."
The definition of criminally reckless conduct is: "the conduct created a risk of death or great bodily harm to another person; the risk of death or great bodily harm was unreasonable and substantial; the defendant was aware that her conduct created the unreasonable or substantial risk of great bodily harm.
"The criminal complaint states that the preliminary findings were that (Avery Edwards) died of blunt force trauma to the head. There is no assertion in the criminal complaint that the fall in the shower caused the death of (Avery Edwards)," Scholz argues in the motion.
The defense also alleges there is no assertion in the complaint that Tran was the direct or indirect cause of the blunt force trauma.
"The criminal complaint does not state that giving (Avery Edwards) a shower created a risk of death and that the risk of death was unreasonable and substantial, and that Ms. Tran was aware that her conduct created the unreasonable and substantial risk of death."
Finally, Scholz accuses the state of using the criminal negligence standard (that one is presumed to be negligent if one had exclusive control of whatever caused the injury even though there is no specific evidence of an act of negligence, and without negligence the accident would not have happened) to show probable cause of a criminally reckless offense.
"Criminal negligence and criminal recklessness are two different standards under the law," the motion states. "The State cannot use a criminal negligence standard to show probable cause of a criminally reckless offense."
Oneida County District Attorney Michael Schiek told the River News Tuesday he is aware of the defense motion and noted the state intends to file an amended complaint in the near future that will include a more detailed report from sheriff's captain Terri Hook as well as the provisional autopsy report on Avery Edwards.
Tran is free on $50,000 cash bail.
As a condition of bond, she is not allowed to leave the state and must comply with all other court orders, including family court directives.
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