November 10, 2021 at 9:14 a.m.
Tran cites 'insufficient evidence' in appeal of conviction in toddler death case
Tran cites 'insufficient evidence' in appeal of conviction in toddler death case
In a 30-page brief filed Monday afternoon with the Third District Court of Appeals in Wausau, assistant state public defender Thomas Aquino argues the state failed to introduce sufficient evidence that Ellen Tran caused the death of 20-month-old Avery Edwards with "criminally reckless" conduct and "utter disregard for human life" as state law requires.
"It was the state's burden to prove Ellen's conduct so the jury could determine whether it was criminally reckless," Aquino wrote. "The prosecutor (Oneida County district attorney Mike Schiek) candidly admitted 'I don't know' what happened in the shower, and could not offer an explanation of Ellen's conduct that did not rely on rank speculation. Without evidence of Ellen's conduct, there was insufficient evidence that the conduct was criminally reckless."
In the brief, Aquino notes that the state's explanation for Avery's death was that "something happened in that shower" but the prosecution "failed to prove what that 'something' was, and thus whether that 'something' was 'something' that Ellen did to cause Avery's death, was 'criminally reckless,' and was with 'utter disregard to human life.'"
Criminally reckless conduct is defined in the brief as conduct that "creates an unreasonable and substantial risk of death or great bodily harm to another human being" when the defendant is aware of the risk.
Tran, 33, was sentenced to 15 years in prison, to be followed by seven years extended supervision, after an Oneida County jury convicted her of reckless homicide following a five-day trial in October of 2018.
As the brief recounts, Avery was in the Rhinelander area in the April 2017 for a visit with his father, Dr. Trung Tran, who was residing in Newbold with his wife Ellen, their 16-month-old child, and her 9-year-old child from a previous relationship. Avery normally resided with his mother, Lori Edwards, in Virginia. According to trial testimony, Edwards found out she was pregnant with Avery days after her relationship with Dr. Tran ended in December 2014. He subsequently married Ellen and moved to Newbold. (The couple divorced after Avery's death.)
Then came the evening of April 14, 2017 and a hang-up phone call from the Tran residence to the Oneida County Dispatch Center. According to trial testimony, when a dispatcher called back, Ellen reported that Avery was unresponsive and had stopped breathing after taking a shower. The toddler died several hours later at a hospital in Marshfield.
Two days later Ellen was arrested on suspicion of second-degree reckless homicide. The charge was amended to first-degree reckless homicide following a preliminary hearing on June 23, 2017 at which time former Fond du Lac County medical examiner Doug Kelley testified that Mrs. Tran's statement that Avery fell in the shower did not match the injuries found at autopsy.
At trial, Kelley testified the boy died as the result of a diffuse axonal injury - a traumatic brain event.
According to Kelley's testimony, diffuse axonal injuries occur when the brain rapidly shifts inside the skull. The connecting fibers in the brain called axons are sheared as the brain rapidly accelerates and decelerates inside the skull. According to Kelley, a child who suffers such an injury is not normal from that point on and may suffer from breathing problems, seizures or immediately fall unconscious.
In the appeal brief, Aquino attempts to cast doubt on Kelley's opinion regarding the cause of death and suggests the state proved only that Ellen was present when her stepson began to experience the symptoms that led to his death, not that she caused his death with reckless conduct and an utter disregard for human life.
"The state relied on Dr. Kelley's opinion that Avery died of blunt force trauma to the head. However, at no point did Dr. Kelley explain how Avery could be struck with enough force to cause a fatal 'tearing' of Avery's axons but only a 'small' subdural hematoma and no fractures of Avery's skull," he wrote.
The brief also addresses testimony offered by Ellen's oldest child regarding when Avery's behavior changed from normal to "weird".
In his closing argument to the jury, Schiek stated that the older child testified that the family was playing together before Dr. Tran went to work at approximately 5:30 p.m. that evening and that Avery was acting normally before going into the bathroom with Ellen and "acting weird" after he came out.
In the brief, Aquino argues the testimony was misstated and that Avery began to act differently after he was taken into a bedroom following the shower, rather than immediately after coming out of the bathroom.
"(Ellen's older child) testified that when Ellen and Avery left the bathroom, Ellen first got dressed and then took Avery to his sister's bedroom to put lotion on him," Aquino wrote. "The prosecutor then asked "[a]fter [Ellen came out with lotion on him what happened?,' to which (the child) responded 'When they changed to the bedroom - when he changed to the bedroom he was fine, but then all of a sudden he just started acting kind of weird.' Thus, Avery did not start acting 'weird,' as the state suggests, in the bathroom, but sometime after he and Ellen exited the bathroom."
Also, according to the brief, at least once during trial the prosecution "intimated" that Ellen's crime was failing to prevent Avery from slipping and falling while in the shower, behavior Aquino argues does not fit the definition of "criminally reckless" conduct or "utter disregard for human life."
On another occasion, Aquino recounts, Schiek suggested that Ellen may have "intentionally swung Avery by the arm or leg and struck his head against the shower wall, though none of the state's expert witnesses testified that Avery's injuries were consistent with such conduct."
The brief also suggests there is evidence of "another mechanism of Avery's death."
"It was undisputed that in addition to the subdural hematoma, there was a subarachnoid hematoma, i.e. bleeding in the brain itself," Aquino wrote. "Dr. Kelley agreed that this kind of bleeding can cause a seizure. Dr. Kelley also agreed that high levels of pseudoephedrine, which was found in Avery's blood as a result of him being treated for influenza, could result in a seizure. And, there is no evidence that Avery was tested for a blood disorder that could explain his bruising. Nor was Avery's blood given a standard test for clotting ability at the emergency room. Also, videos taken more than a week before his death show Avery with a discoloration in the same location on his right forehead of where the blunt force trauma allegedly occurred, and also show Avery lethargic and nonresponsive to Ellen. Avery's death can thus be explained by a seemingly minor head injury in the shower resulting in the subarachnoid bleeding and thus a seizure, as a result of a combination of a pre-existing injury in the same area, an undiagnosed blood disorder, and a high level of pseudoephedrine in his system."
At one point in the investigation, Ellen told investigators "she believed Avery was standing in the back corner of the shower and that maybe he had fallen towards the bench seat that was in the shower, though she was unsure," the brief states. "Ellen also explained that the reason she did not initially tell officers about Avery's fall was that she did not think it was significant enough to cause Avery's symptoms."
The brief makes only a passing reference to the text messages the state introduced at trial to illustrate the intense hostility it alleged Ellen harbored toward both Avery and his mother. To add "context" to the case, Schiek read to the jury excerpts of numerous messages Ellen sent to her husband in which she called Avery "pitiful" and a "stupid brat" and expressed anger at having money from her household go to her husband's ex-girlfriend for child support.
After Ellen was convicted, Dr. Tran served 12 days in jail for obstructing the investigation into Avery's death.
According to the sentencing memorandum in that case, the state and defense agreed to stipulate that Dr. Tran obstructed an officer when he lied to Det. Sgt. Chad Wanta in the beginning of the investigation into Avery's death.
"While Trung initially told Detective Wanta he had no knowledge of Ellen's feelings towards Avery, text messages taken from Ellen's phone show otherwise," the memorandum said.
According to the brief, when reviewing a conviction for insufficient evidence, an appellate court may not reverse a conviction "unless the evidence, viewed most favorably to the state and the conviction, is so insufficient in probative value and force that it can be said as a matter of law that no trier of fact, acting reasonably, could have found guilt beyond a reasonable doubt."
The state is expected to file a response to the brief in December.
Heather Schaefer may be reached at [email protected].
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