August 29, 2018 at 5:13 p.m.
Judge denies motion to dismiss Tran case
Doctor pleads not guilty to both charges
Judge denies motion to dismiss Tran case
By By Jamie Taylor and Heather Schaefer-
According to the criminal complaint, Edwards became unresponsive April 14, 2017 while visiting his father and stepmother in Newbold. He died several hours later at a hospital in Marshfield. Shortly thereafter, Ellen Tran was charged with second degree reckless homicide. The charge was amended to first degree reckless homicide after Fond du Lac County medical examiner Doug Kelley detailed the boy's injuries during a preliminary hearing. Kelley testified Edwards died from blunt force trauma to the head and listed several other areas of the child's body where he found either bruises or contusions. He also testified the injuries did not match Ellen's statement that the boy had become unresponsive after falling in the shower.
In September 2017, Oneida County prosecutors charged Dr. Tran with child abuse (failure to act to prevent great bodily harm) and neglecting a child (consequence is death), both felonies.
Tran challenged the charges and won a victory in November 2017 when his attorney, Michael Guerin, successfully argued there is not enough evidence in the criminal complaint to show his client was aware of any prior "great" bodily harm to Edwards at the hands of Ellen Tran.
Judge Michael Bloom dismissed the "failure to act" charge on that basis but the state responded by filing a slightly different charge - failure to act to prevent "bodily harm" which requires the state prove that Dr. Tran knew or believed Edwards had suffered previous "bodily harm" as opposed to "great bodily harm" at Ellen's hands.
The defense again responded with a motion to dismiss, reiterating the argument that there is no evidence Dr. Tran was aware of any alleged bodily harm caused by Ellen and there is no evidence that Ellen caused bodily harm to Edwards prior to his death.
Oneida County district attorney Mike Schiek responded to the defense motion by citing the testimony of sheriff's detective Chad Wanta at Dr. Tran's preliminary hearing. Wanta testified Dr. Tran told him he had expressed concerns about prior bruising his son had experienced during the April 2017 visit but was hesitant to take Edwards to the doctor out of concern the couple would be accused of child abuse.
"The defendant stated multiple times he believed Ellen Tran was mentally unstable and struggled with AODA (alcohol and other drug abuse) issues. The defendant stated to Ellen Tran's parents that he had lost trust and confidence in Ellen Tran. Despite having this knowledge, in April of 2017, the defendant continued to leave (Edwards) in the exclusive care of Ellen Tran," Schiek wrote in a reply brief. "And during said visit in April of 2017, the defendant observed bruising on (Edwards) and questioned Ellen Tran as to the source of the bruising, with Ellen Tran responding she did not know or the bruising was caused by one of the other children in the home. Despite having this knowledge ... the defendant did not take any action to prevent future abuse, such as notifying the authorities, take (Edwards) to the Emergency Room, or provide alternative child care."
Before issuing a ruling on the motion Tuesday, Bloom told the attorneys he had reviewed the latest filings and advised there was no need to rehash those arguments in court. He did, however, allow the attorneys to present additional arguments if they so chose.
Luczak's only additional argument was that Wanta's testimony did not establish that the bruising rose to the level of bodily harm.
"Just as there was no evidence of great bodily harm, I don't think that there is evidence to connect having bodily harm prior to April 14, 2017," he said.
In rebuttal, Schiek argued the entirety of Wanta's testimony at the preliminary hearing more than adequately establishes prior bodily harm to Edwards.
Bloom then began his analysis of the case.
"The statute requires that the person have prior knowledge that another person intends to cause, is causing or has caused bodily harm," Bloom said. While the first two elements don't apply in this case, Schiek has built the state's case around the third, he continued.
The judge then read from the transcript of Wanta's testimony at the preliminary where the detective told the court that Dr. Tran told him he had started noticing bruising on Edwards and questioned his wife as to where the bruises had come from. He also cited Wanta's testimony that both of the Trans told him they didn't take the child to the doctor because they were worried about child abuse accusations.
"Do those statements of the defendant to Detective Wanta conclusively establish that he (Dr. Tran) knew that Ellen Tran had caused bodily harm to the alleged victim? No," Bloom said. "Does that information give rise to a reasonable inference that Mr. Tran believed that Ellen had caused bodily harm to (Edwards) sufficient to establish probable cause? In my judgement, the answer to that is yes."
While the bruising Edwards allegedly suffered did not rise to the level of "great bodily harm," it does meet the statutory threshold for "bodily harm," he added.
After denying the motion, Bloom asked Luczak if the defense was ready to proceed directly to arraignment. Luczak entered not guilty pleas on behalf of his client and asked that further hearings not be held until after Ellen Tran's case goes to trial.
Ellen Tran is currently scheduled for a final pre-trial conference Sept. 12, with a six-day jury trial set to run from Oct. 19-26. If convicted of the class D felony, she faces a fine of up to $100,000 and up to 60 years in prison.
Dr. Tran faces a maximum sentence of 31 years in prison if convicted of both charges in his case.
After Tuesday's hearing, Schiek said both sides are preparing to file their final motions in Ellen Tran's case and a motion hearing may be needed before the Sept. 12 date. He said he is prepared to take both cases to trial if they cannot be resolved with plea agreements.
Dr. Tran is due back in court Nov. 13 for a pretrial conference. According to court records, the Trans divorced in June. Dr. Tran now has a North Carolina address while court records list an Eagle River address for Ellen.
Jamie Taylor may be reached via email at [email protected].
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