May 26, 2017 at 4:36 p.m.
Judge denies motion to dismiss Tran case
O'Melia rules amended complaint meets statutory requirements
Judge denies motion to dismiss Tran case
By By Jamie Taylor and Heather Schaefer-
Branch I Judge Patrick O'Melia rejected the argument of defense attorney Amy C. Scholz, who represents Ellen L. Tran, that 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," among other things.
According to the complaint, the sheriff's department received a 9-1-1 call the evening of April 14 reporting a 20-month-old boy in Newbold was breathing very shallowly.
Deputies and medics responded to the Tran home and transported Edwards to Ministry St. Mary's Hospital in Rhinelander. Edwards was then flown to St. Joseph's Hospital in Marshfield where he passed away just after midnight on April 15.
In court Thursday, Scholtz argued the complaint was deficient on several points.
"The criminal complaint, and the amended criminal complaint, fail to show probable cause upon which Ms. Tran could be charged with the offense that she is charged with," Scholz said.
As she did in her written motions, Scholz then cited case law which states a criminal complaint must lay out the offense charged in such a way that the defendant can prepare an adequate criminal defense.
"The state has failed to indicate what act, the act that caused the death of (Avery Edwards)," she said. "And it fails to show that act was reckless, as such would be an act of reckless criminal conduct, even to the low level of probable cause as is required in a criminal complaint. I don't feel the state has met their burden of probable cause in their criminal complaint, and it should be dismissed."
District attorney Michael Schiek then offered comments to bolster the arguments he made in his written response to Scholz's motion.
According to Schiek, state law requires a criminal complaint answer five questions to show probable cause exists that a crime has been committed. They are as follows:
• Who is charged with the crime.
• What is the named person charged with.
• When did the alleged crime take place.
• Where did the alleged crime take place.
• Why is the named person being charged, who said so and how reliable is the evidence to back up the charge.
To each point, Schiek argued the complaint charging Tran meets that burden of proof.
"There is case law after case law, judge, that states this same theory," he said.
Schiek cited the reports from two Oneida County officers, sheriff's captain Terri Hook and sergeant Chad Wanta attached to the amended criminal complaint, along with the provisional autopsy report listing the injuries found on Edwards' body. He also cited a statement made to investigators by a doctor at the hospital in Marshfield where the boy died that the injuries Edwards suffered "were consistent with child abuse."
Schiek then read through the injuries that Dr. Doug Kelley of the Fond du Lac County medical examiner's office listed in his provisional autopsy report and noted Kelley listed the cause of death as "blunt force trauma."
Schiek said the multitude and magnitude of the injuries the boy suffered take the case beyond that of an accident or "mishandling" of the child.
"The defense indicates that they need to plea and prepare a effective defense. I think they are able enter a plea, and as to preparing a defense, that is exactly what this motion has done," Schiek said.
He added that the defense is attacking his ability to prove the case while also arguing that it was an accident and not due to any actions on the part of Tran.
"That's their theory," he said. "We have a much different theory that there is no way that this could have been an accident or an unintentional act. The information law enforcement provided, the information that we got from the forensic pathologist and other doctors is that this is not consistent with that type of theory (that it was an accident)."
Schiek also claimed some of the other arguments Scholz made in her motion concern issues that are very far down the road as far as getting the case before a jury.
"We have fully anticipated that this is going to be a case where there is going to be expert testimony to challenge our expert testimony, and it is going to come down to whether or not it is a deliberate action and that we can prove that," Schiek said. "That is going to take testimony from doctors and experts in those particular fields."
For the purposes of the motion at hand, he said the amended criminal complaint meets the requirements set by state law and asked that the case proceed to a preliminary hearing.
In rebuttal, Scholz noted that for the first 20 of the 25 pages of police reports, Tran repeatedly denied knowing how Edwards was injured, other than "he fell."
"Over and over and over in response to the questioning," she noted. "It's not until Captain Hook and Detective Wanta suggest how something may have happened that she finally relents and says 'maybe, I don't know. I still don't know what happened.' They present her with a theory, and she says, 'OK, maybe.' Frankly, judge, when you read this, it is obviously a person who is trying to go home and stop an interrogation. This is not someone who has confessed to a particular act."
Scholz also countered that nowhere in the criminal complaint does the state say exactly what it believes caused the blunt force trauma to Edwards' head that led to his death.
"The state wants to say that the actions of Ms. Tran by putting her stepson in the shower created something unreasonable and a substantial risk of death, and that she was aware that doing so created such an unreasonable and a substantial risk of death. The state hasn't presented anything, they simply haven't," Scholz said. "There is nothing other than she put him in the shower and that he fell. That is not an act by a person that causes the death of another person."
She also pointed out that much of the case law Schiek cited in his written reply to the motion to dismiss was based on case law that became outdated when the homicide laws were rewritten in 1988 and 1989.
After hearing the attorneys' arguments, O'Melia explained the second-degree reckless homicide statue includes two required elements.
"The first is that the defendant caused the death of, in this case (Avery Edwards). Second, that the defendant brought the death by criminally reckless conduct, which has been defined as the conduct created a risk of death or great bodily harm to another person, and the risk of death or great bodily harm was unreasonable and substantial," the judge said. "And finally, that the defendant was aware that the defendant's conduct created an unreasonable and substantial risk of death or great bodily harm."
He then noted that he is bound by the contents of "the four corners of the complaint" and only the information contain there, even though he is aware of evidence that may or may not have been discovered via search warrants he authorized.
Under the new homicide statute, simple negligence is insufficient in terms of criminal liability, but criminal negligence differs from ordinary negligence because the risk is more serious, that great bodily harm is different from simple harm, he explained. The risk must also be more than an unreasonable risk, it must rise to the level of substantial.
"Criminal negligence involves the same degree of risk as criminal recklessness, that is an unreasonable and substantial risk of death or great bodily harm," O'Melia said. "The difference between the two is the recklessness that the actor is subjectively aware of the risk. Criminal negligence only requires that the actor should have been aware of the risk, normally an objective standard of what a normal and reasonable person would have recognized that it was dangerous."
O'Melia said the statutes create a "big spectrum" from recklessness negligence to recklessness, and the subjective awareness of Tran to the risk of putting Edwards in the tub for a shower is the determining factor he must weigh.
"The report is lengthy, but the length isn't important, it's the content," O'Melia said. "I understand that a lot of the reports aren't done yet, that's why there are handwritten notes from the medical examiner, and I'm only going to highlight a few of them here."
He noted that when Tran's husband, Dr. Trung Tran, left for work between 5:30 and 5:45 p.m. April 14, the child was fine. At 6:24 p.m., Mrs. Tran called 9-1-1 to report that Edwards was in distress. O'Melia noted that in the original 9-1-1 call, Tran does not mention that Edwards had fallen in the shower, and her story changed only after her husband described the injuries he saw on the child in the Ministry St. Mary's emergency room. He also indicated that the reports state that the child's father told the detective that his son did not like taking showers, preferring a bath.
"He (Edwards) had been given a tub earlier in the day, according to dad, and didn't understand why the child was even given a shower. He said that he was difficult to shower," O'Melia said.
He also mentioned Tran's statements that she could not remember how the boy fell, despite the relatively short time frame between when the child was taken to the emergency room and when she was first questioned.
"Injuries described by the doctors or experts did not match the mother's descriptions," he said.
O'Melia also said that Tran told detectives that she knew that having Edwards visit "would not be easy" because of prior visits the child made from Virginia where he lived with his mother.
He also cited a passage in the report where during the lengthy interrogation before her arrest, Tran said the child was "flailing around" and that she "might have had him by one foot" at one point in the shower. Tran said she had put essential oils on the child, and that is why she was giving him a shower, to remove them. He also had soap and water on his body and was flailing about while Tran was in the shower with him, according to the reports.
"As far as causation, the cause of death, I think there is enough in this complaint," O'Melia said. "First of all, you had an asymptomatic child at 5:45 p.m., no indications, other than respiratory issues and vitamin deficiency, but nothing like is described at 6:24 p.m. where you had a child literally dying in the house less than an hour later. She testified that he fell or dropped or tipped over in the shower. The child died of a blunt force trauma and had bruises on his body. He did not have a bruise before he got in the shower."
Sometime during the course of Tran giving Edwards that shower, something happened to the child that led to the blunt force trauma, the judge continued.
"It happened right there in the shower, he died as a result of the injuries; of falling or dropping, or whatever the theory may be," he said.
O'Melia said Tran should have been aware that the boy did not like showers, that he would be fussy and flailing around. The fact that oils, soap and water would make the child slippery adds an element of risk "that she should have been aware of," and therefore the complaint met the other component of showing probable cause that Tran was negligent, O'Melia said.
He then denied Scholz's motion to dismiss the charge.
The case is set for a preliminary hearing on June 23.
Neither Schiek or Scholz would comment on the proceedings after the hearing. Tran was accompanied by her husband, and neither of them offered any comment.
Lori Edwards, Avery's mother, was in attendance, but representatives of the Tri-County Council on Domestic Violence and Sexual Assault distributed a message to the media before the hearing asking that no reporters approach her for an interview and that request was honored.
Tran remains free on a $50,000 cash bond. If convicted of the Class D felony, she faces a maximum sentence of 25 years in prison.
Jamie Taylor may be reached at [email protected].
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