November 1, 2017 at 3:38 p.m.
Father files motion to dismiss in toddler death case
Father files motion to dismiss in toddler death case
In the motion and supporting brief filed in Oneida County Circuity Court Oct. 27, defense attorneys argue the information set forth in the criminal complaint does not support multiple elements of the crimes with which Dr. Trung T. Tran has been charged.
"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 brief states.
In its complaints against both Dr. Tran, 40, and his wife, Ellen Tran, 29, the state sets forth a theory that Ellen Tran caused the death of her stepson and Dr. Tran, who now has an Appleton address, bears legal responsibility for failing to protect the boy.
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 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 increased 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 to Rhinelander, that show no injuries.
The boy's injuries were not consistent with Ellen Tran's claim that the child 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, filed Sept. 20, 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 argues 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 argues 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."
In addition, the defense argues the criminal complaint "contains no facts which establish what act Trung could have taken to prevent the great bodily harm from occurring to (Avery), and no factual allegations which set forth how his failure to take some unknown act facilitated the great bodily harm to (Avery)."
The brief includes a similar argument as to the second count, physical abuse/failure to prevent bodily harm. The defense alleges the criminal complaint is "completely silent" on what Tran could have done on the day of (Avery's) death that could have prevented Ellen from allegedly killing him. "Trung was at work 7.2 miles away from where the alleged homicide occurred and there are no facts that support the contention that Trung either neglected (Avery) or that any alleged neglect by Trung was a substantial factor in producing (Avery's) death," the brief states.
A hearing on the motion has been set for Nov. 30.
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