June 18, 2018 at 3:53 p.m.
State replies to father's motion to dismiss toddler death case
State replies to father's motion to dismiss toddler death case
By By Heather Schaefer and Jamie Taylor-
The latest pleading was filed June 12 by Oneida County district attorney Michael Schiek in response to Dr. Trung T. Tran's May 1 motion to dismiss the two felony charges the state has filed against him in connection with his son's April 15, 2017 death.
Attorneys for Dr. Tran have argued the information - the formal charging document in a criminal case - filed Feb. 21 charging Tran with failure to act to prevent bodily harm to a child, a class H felony, and child neglect resulting in death, a class D felony, should be dismissed "on the grounds that the preliminary examination was insufficient to establish probable cause that Tran committed a felony, and based on the grounds previously argued in Tran's motion to dismiss the complaint."
Tran, a physician who was living in the Rhinelander area at the time of his son's death, was originally charged with failure to act to prevent great bodily harm to a child, a class F felony, along with the child neglect count. However, Oneida County circuit judge Michael Bloom dismissed the "failure to act" charge Nov. 30, 2017 after Tran's attorney Michael Guerin successfully argued there was not enough evidence in the criminal complaint to show his client was aware of any prior incidents of "great bodily harm" to Avery Edwards at the hands of his stepmother Ellen Tran.
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 which in this case is Ellen Tran) previously caused great bodily harm to the child.
Schiek has argued the new charge requires the state to prove only that Edwards suffered previous "bodily harm" as opposed to "great bodily harm."
In the motion to dismiss, defense counsel Jason D. Luczak argued there is no evidence Dr. Tran was aware of any alleged bodily harm caused by Ellen (who has been charged with first degree reckless homicide in connection with Avery's death) and there is no evidence that Ellen caused bodily harm to the boy prior to April 14.
In response, Schiek argues that evidence to the contrary was presented at Dr. Tran's preliminary hearing Jan. 26 in the form of testimony from Oneida County sheriff's detective Chad Wanta.
Wanta testified that detectives were able to obtain phone and text message records from both of the Trans. One of the messages read into the court record was Dr. Tran's alleged response to a message from Ellen in which she said she hoped Edwards would die.
"Yes, you demonstrated characteristics I can't tolerate anymore. You abuse alcohol, drugs, have no regards for me or what is important to me. Last night's text showed me you haven't changed one bit. Who in their sane mind says they hope another person's child dies or was never born? How would you like it if someone said that about [K.Z.T.] You're - - self destructive and you lost my confidence and trust. You're impulsiveness - - has put [A.R.M] and [K.Z.T.] in danger. You drove around intoxicated with [A.R.M.] and then forgot - - where you put [K.Z.T.]," the message read, according to the transcript of the preliminary hearing.
K.Z.T. is the couple's child together. A.R.M. is Ellen's child from a previous relationship.
Wanta also read another text message from Dr. Tran to Ellen's parents that said "I think she needs help, more than what she's going to get here and I've more than reached my limit with her shenanigans. She's selfish, suicidal, vindictive, self-injuring, impulsive, addicted to alcohol, drugs, and immature. She's ruined my trust and confidence, verging on ruining my reputation up here if she ever gets caught driving while intoxicated or if I have to take her into - - the emergency room [because] she attempted suicide again. I guarantee she's going to act out when I tell her I want a divorce. She accuses me of being abusive, but she's the one sending these crazy texts hoping my son dies or that I should get rid of him. Who in their sane mind says things like this? No matter how depressed you are, don't say that about someone else's child."
The boy's mother, Lori Edwards, took photos of her son's body before she sent him on the court-ordered visit with the Trans in April 2017. The state is in possession of those photos which have been described as showing no bruising.
Wanta also testified that Dr. Tran admitted to seeing bruises on his son during the course of the visit.
"Mr. Tran told me that he as well had started observing bruising on AJE's body and that he had been questioning Ellen as to where [the bruises] were coming from, and the information she initially stated, she did not know, and then had stated that [AJE] was clumsy, running into things, and she believed it was from AJE and KZT playing, that KZT was rough," Wanta testified at the preliminary hearing. "[B]oth Mr. and Mrs. Tran told me that they had not taken AJE to a doctor because they were afraid they would be accused of child abuse."
In his reply brief, Schiek argues Wanta's testimony includes the information necessary to prove all of the elements of the crime with which Dr. Tran has been charged.
"The defendant stated multiple times he believed Ellen Tran was mentally unstable and struggled with AODA 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 A.J.E. in the exclusive care of Ellen Tran," Schiek wrote. "And during said visit in April of 2017, the defendant observed bruising on A.J.E. 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 A.J.E. to the Emergency Room, or provide alternative child care."
"The defendant's conduct amounted to an overt act because despite having knowledge of instances where Ellen Tran placed the other two children in the home at risk of harm, and after having knowledge that A.J.E. incurred bruises while in the care of Ellen Tran, the defendant continuously left A.J.E. in Ellen Tran's exclusive care, thereby exposing A.J.E. to an unreasonable risk of harm," the brief continues.
According to the criminal complaint, Edwards became unresponsive April 14, 2017 while visiting his father and stepmother in the town of Newbold. He died several hours later at a hospital in Marshfield. Shortly thereafter, Ellen was charged with second degree reckless homicide. The charge was later modified to first degree reckless homicide.
At the preliminary hearing in Ellen's case, Fond du Lac County medical examiner Doug Kelley testified the boy died from blunt force trauma to the head and listed the areas of the child's body where he found either bruises or contusions.
In addition to the boy's head, Kelley 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.
Ellen Tran told investigators 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 hearing on Dr. Tran's motion to dismiss is set for July 11.
If convicted of both charges, Dr. Tran faces a maximum of 31 years in prison.
Ellen Tran faces a maximum of 60 years in prison if convicted of the reckless homicide charge. Her case was set for trial starting Oct. 19 but court records now indicate a status conference is scheduled on that date.
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