Former Newbold woman seeks high court review of conviction in toddler death case

A former Newbold woman convicted of first-degree reckless homicide in the death of her toddler stepson back in 2017 has asked the Wisconsin Supreme Court to review her case. According to online court records, an attorney for Ellen Tran filed a petition for review with the state’s highest court on June 22, just under a month after the District III Court of Appeals in Wausau rejected her request for reversal.

In a unanimous decision released May 23, the appeals court found that the Oneida County jury that convicted Tran, now 34, in the death of 20-month-old Avery Edwards had sufficient evidence to find her guilty.

Tran had appealed the conviction on the grounds the prosecution “never offered a cohesive theory of exactly what it was that (she) did that was reckless.”

The appeals court disagreed.

The jury was “presented with evidence that (Avery) suffered a traumatic brain injury in the shower, which caused his death, and that the injury occurred while he was alone with Ellen, who had previously expressed extreme displeasure with (Avery) and his biological mother,” the court found. “Further, Ellen’s evolving story supports the jury’s decision, as it indicates that Ellen’s version of events was incredible. Although circumstantial, the evidence supports a finding that Ellen’s conduct — whether that be pushing (Avery) into something or throwing him against the shower walls — was a substantial factor in producing (Avery’s) death. The State therefore, presented sufficient evidence to prove the first element of first-degree reckless homicide.”

As the opinion recounts, Avery was in the Rhinelander area in 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 Ellen’s 9-year-old child from a previous relationship. Avery normally resided with his mother in Virginia. 

According to trial testimony, Avery’s mother found out she was pregnant 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 in October 2018, 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.

At trial prosecutors also showed the jury a series of text messages between Ellen and Trug Tran to illustrate the intense hostility it alleged Ellen harbored toward both Avery and his mother. To add “context” to the case, Oneida County district attorney Mike 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.

In her appeal brief, Tran attempted to cast doubt on Kelley’s opinion regarding the cause of death and suggested the state proved only that she 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,” the appeal brief alleged.

In his closing argument to the jury, Oneida County district attorney Mike Schiek conceded that the state could not say precisely what happened in the shower. 

Even so, the appeals court did not find the defense arguments persuasive.

“When the evidence is viewed in a light most favorable to the conviction, we conclude that a reasonable jury could have found Ellen guilty of first-degree reckless homicide,” the court found. “As to the first element of that crime, there was sufficient evidence presented for the jury to find that Ellen caused (Avery’s) death. Cause means that the defendant’s act was a substantial factor in producing the death. The State conceded that it could not point to exactly what happened leading up to (Avery’s) injuries, but it argued that Ellen did something in the shower to cause (Avery’s) death. During its closing argument, the State argued, ‘Is she holding him by the legs? I don’t know. Did she hold him by the arms, throw him against the wall in the bathroom? I don’t know. But all those [injuries], they’re consistent with something like that.’ The jury was therefore presented with evidence that (Avery) suffered a traumatic brain injury in the shower, which caused his death, and that the injury occurred while he was alone with Ellen, who had previously expressed extreme displeasure with (Avery) and his biological mother. Further, Ellen’s evolving story supports the jury’s decision, as it indicates that Ellen’s version of events was incredible. Although circumstantial, the evidence supports a finding that Ellen’s conduct — whether that be pushing (Avery) into something or throwing him against the shower walls — was a substantial factor in producing (Avery’s) death. The State therefore, presented sufficient evidence to prove the first element of first-degree reckless homicide.”

The 22-page petition to the state supreme court reiterates many of the same arguments presented to the court of appeals however, assistant state public defender Thomas Aquino stresses that “this case presents important questions about the evidence necessary to distinguish criminally reckless conduct from conduct that is merely accidental.”

“Review is warranted to clarify whether the prosecutor’s theory that ‘something’ happened, or the expert’s testimony that Avery’s injury was ‘different’ from a ‘simple fall’ is enough evidence to conclude that Ellen acted with utter disregard for human life,” he argued.

On July 6, assistant state attorney general Daniel J. O’Brien filed a four-page response to the petition. 

“The court of appeals properly held that the State presented sufficient evidence upon which a rational jury could rely to find that Tran’s reckless and violent act committed in a rage against the helpless infant in the shower created a substantial risk of serious injury or death, caused massive brain injuries with immediate symptoms, showed utter disregard for his life, and was a substantial factor in causing his death,” O’Brien wrote. “The State presented powerful circumstantial evidence showing that Tran wished openly that the child had never been born, she had injured him in the past, she gave inconsistent and evolving accounts to police trying to explain what happened to the child in the shower, and the child was fine when she took him into the shower but not fine when she brought him out of the shower, prompting the 911 call.”

Like the U.S. Supreme Court, the state’s highest court chooses which cases it will hear, meaning that further review of Tran’s conviction is not automatic. 

Tran is serving a 15-year prison sentence to be followed by seven years extended supervision.

If he had lived, Avery would have turned 8 years old in August.

Heather Schaefer may be reached at [email protected].