January 17, 2018 at 3:52 p.m.
Tran seeks dismissal of second felony count in toddler death case
Tran seeks dismissal of second felony count in toddler death case
By By Heather Schaefer and Jamie Taylor-
D. Trung T. Tran, 40, was charged Sept. 20 with failure to act to prevent reckless causing of great bodily harm to a child (his son Avery J. Edwards) and child neglect resulting in death. The first count was dismissed following a motion hearing in late November.
At the end of that hearing, Judge Michael Bloom indicated he would permit the state or defense to submit additional information and arguments as to the second count. Defense attorneys took Bloom up on the offer, filing a seven-page brief Jan. 12 arguing "the probable cause section of the complaint fails to establish a causal link between the neglect alleged in the complaint and the resulting injury to (Edwards)."
"There is nothing in paragraph 22 of the criminal complaint, or any portion of the criminal complaint, that establishes that anything allegedly known or said by Trung would indicate that Ellen would, as the State alleges, violently and brutally attack and murder (Edwards)," the brief states. "The nature of the alleged attack which resulted in (Edwards') death makes this case very different from those normally brought under this statute where there is a clear and obvious causal connection between the alleged neglect and the ultimate injury, death."
The defense attorneys then cite a 1992 Milwaukee case in which a father of five children was convicted of child neglect resulting in death after his 4-month-old son died of malnutrition and dehydration one day after the father visited him and his siblings and observed them living in squalid conditions. The brief notes the father in that case observed that the baby was very sick, barely moving and in need of medical attention.
In that case, the defense argues, there is a clear and obvious causal link between the failure to assure that the baby received medical care and his cause of death due to malnutrition and dehydration. The same is not true in the Tran case, they argue.
"In this case, there is no such causal link in the probable cause section of the complaint that establishes that (Edwards') alleged murder was a consequence of any of the alleged neglect," the brief states. "Certainly, Ellen Tran's alleged murder of (Edwards) was an intervening superseding cause that was unrelated to any of the alleged actions or inactions allegedly taken by Trung in the complaint. When Trung left for work on April 14, 2017, he had no reason to believe that Ellen Tran was going to allegedly kill (Edwards). Unlike the (malnutrition/dehydration) case, where the cause of death was a natural consequence of the neglect, there is no factual basis to support that any of the facts alleged involving Trung would have led him to believe that his wife was going to murder his son. Without this causal link, the probable cause section of the criminal complaint in this case is insufficient to establish that death was a consequence of the alleged neglect."
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 dismissed.
"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 Nov. 30, 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.
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 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, 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 Ellen 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.
Dr. Tran is due back in court Jan. 26.
Comments:
You must login to comment.