State v. Tran

• Decision Date: 23 May 2023
• Docket Number: 2021AP1015-CR
• Parties: State of Wisconsin, Plaintiff-Respondent, v. Ellen L. Tran, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

1

State of Wisconsin, Plaintiff-Respondent, v. Ellen L. Tran, Defendant-Appellant.

No. 2021AP1015-CR

Court of Appeals of Wisconsin, District III

May 23, 2023

This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.

APPEAL from a judgment of the circuit court for Oneida County Cir Ct. No. 2017CF102 PATRICK F. O'MELIA, Judge. Affirmed.

Per curiam opinions may not be cited in any court of this state as precedent or authority, except for the limited purposes specified in Wis.Stat. Rule 809.23(3).

Before Stark, P.J., Hruz and Gill, JJ.

PER CURIAM.

¶1 Ellen Tran appeals from a judgment convicting her, following a jury trial, of first-degree reckless homicide. She argues that the State failed to introduce sufficient evidence at trial to prove each element of that crime. We conclude that there was sufficient evidence before the jury to find Ellen guilty of first-degree reckless homicide and we therefore affirm the judgment of conviction.

BACKGROUND

¶2 Ellen^[1] and her husband, Trung Tran, lived in Rhinelander with their biological daughter Emma and Ellen's biological son, Aaron. Trung also had a child Austin, from a relationship with a woman named Lauren.

¶3 In March 2016, a visitation schedule was established under which Austin would visit Trung and Ellen for seven days every month. There was no issue with Austin's first visit in May 2016 when Austin was seven months old.

¶4 The second visit took place between July and August 2016. This time, there were a number of issues concerning Austin including Ellen feeding Austin her breastmilk and Ellen taking Austin to North Carolina without Trung for the entirety of the scheduled visit. After picking Austin up from Ellen, Lauren observed bruising and scratches on Austin's body. Ultimately, Lauren took Austin to a hospital, contacted social services, and filed a protective order against Ellen. A court dismissed the order against Ellen in February 2017.

¶5 After the protective order was dismissed, the visitation order was modified, allowing Trung more time with Austin. The third visit, ultimately Austin's last, began on March 31 2017, and was set to last thirty days.

¶6 On April 14, 2017, at around 6:25 p.m., the Oneida County Sherriff's Office was informed by dispatch that Ellen had called 911 stating that she had just gotten Austin out of the shower, that "something was wrong with" him, and that he was not breathing properly. Austin was transported by EMS to Ministry Saint Mary's Hospital in Rhinelander and was eventually flown to Ministry Saint Joseph's Hospital in Marshfield. Austin died that night at around 11:30 p.m. A medical examiner performed an autopsy, concluding that Austin died of blunt force trauma to the head.

¶7 Ellen was charged with one count of first-degree reckless homicide. The case proceeded to a jury trial. Following four days of testimony, the jury found Ellen guilty of first-degree reckless homicide. Ellen appeals. Additional facts will be included below as necessary.

DISCUSSION

¶8 Whether evidence at trial is sufficient to sustain a guilty verdict in a criminal prosecution is a question of law we review de novo. State v. Smith, 2012 WI 91 ¶24, 342 Wis.2d 710, 817 N.W.2d 410. We will not, however, substitute our judgment for that of the jury unless

the evidence, viewed most favorably to the state and the conviction, is so lacking in probative value and force that no trier of fact, acting reasonably, could have found guilt beyond a reasonable doubt. If any possibility exists that the trier of fact could have drawn the appropriate inferences from the evidence adduced at trial to find the requisite guilt, an appellate court may not overturn a verdict even if it believes that the trier of fact should not have found guilt based on the evidence before it.

State v. Poellinger, 153 Wis.2d 493, 507, 451 N.W.2d 752 (1990) (citation omitted). The standard of review in circumstantial evidence cases is the same:

In reviewing the sufficiency of circumstantial evidence to support a conviction, an appellate court need not concern itself in any way with evidence which might support other theories of the crime. An appellate court need only decide whether the theory of guilt accepted by the trier of fact is supported by sufficient evidence to sustain the verdict rendered.

Id. at 507-08.

¶9 The jury found Ellen guilty of first-degree reckless homicide, a violation of Wis.Stat. § 940.02(1). Under § 940.02(1), the State bore the burden of proving beyond a reasonable doubt that: (1) Ellen caused the death of Austin; (2) Ellen caused his death by criminally reckless conduct; and (3) the circumstances of Ellen's conduct showed utter disregard for human life. See Wis JI-Criminal 1020 (2015). Ellen challenges the sufficiency of the evidence for each of these three elements on appeal.

¶10 At trial, the State presented recorded statements Ellen made to law enforcement following Austin's death, which were admitted into evidence. Notably, the statements reflect that Ellen initially told Oneida County Sheriff's Office Detective Chad Wanta, who was the first detective to respond to the scene of the incident, that she "put [Austin] in the shower … and [she] showered him off." She added that Austin "was fine the whole time." Later during the interview, after a phone call with Trung, Ellen told Wanta that "[t]hey said he had [a] subdural hematoma" and that she "guess[ed]" he hit his head in the shower.

Wanta inquired further, and Ellen confirmed that Austin "did slip up and hit his head" in the shower.

¶11 Ellen's version of events, however, did not comport with testimony from the State's experts. At trial, Dr. Doug Kelley, the medical examiner who performed Austin's autopsy, testified that it was his conclusion that Austin's cause of death was blunt force trauma to the head. Specifically, Kelley determined that Austin's head injuries included: an acute subdural hemorrhage; an acute subarachnoid hemorrhage; brain swelling; traumatic and hypoxic axonal injuries; and bilateral retinal and optic nerve hemorrhages.

¶12 According to Dr. Kelley, his findings relating to Austin's external and internal injuries were consistent with injuries caused by the impact of Austin's head with a surface. Kelley noted that Austin had extensive bruising to his head. He stated that head injuries can be divided into two groups: focal injuries and diffuse injuries. The former "are the kind of injuries that you get from falling and hitting your head, and they result in things like skull fractures and localized subdural hematomas." Diffuse injuries, on the other hand, are "different than falling and just hitting your head on the wall or something like that or bumping your head during a simple fall." According to Kelley, the "more severe force involved," the deeper the axon damage becomes and "you start getting down to areas that affect very vital functions like breathing." Kelley testified that Austin suffered a diffuse axonal brain injury, not a focal injury.

¶13 Doctor Kristen C. Iniguez, a pediatrician at Ministry Saint Joseph'sHospital who specializes in child abuse medicine and who inspected Austin's body following his death, also testified as to Austin's injuries. In addition to extensive bruising on Austin's body-essentially from the shoulders down- Austin also had a "large" bruise on the right side of his forehead and two bruises on the left side of his forehead. Iniguez concluded that Austin's injuries were consistent with nonaccidental trauma and abusive head trauma. A number of photographs depicting Austin's external injuries were offered by the State and admitted into evidence.

¶14 Doctor Lynn P. Gehrmann, an emergency physician at Ministry Saint Mary's Hospital who treated Austin prior to his death, testified that a scan of Austin's brain "showed a very small" subdural hematoma, which meant the "bleeding amount … was not that much."^[2] Furthermore, Austin was hypothermic and had low blood pressure. Gehrmann stated that the diffuse axonal brain injury explained Austin's hypothermia and low blood pressure.

¶15 As part of its theory that Ellen killed Austin, the State also presented evidence regarding Ellen's relationship with Austin and his biological mother, Lauren. For example, the State presented testimony that during the July-August 2016 visitation, Ellen was caring for Austin by herself in North Carolina while Trung was in Rhinelander. According to Lauren, upon picking up Austin from Ellen's care, she noticed scratches and bruises on Austin's body. Later that day, Austin began "screaming" in his sleep, and it took Lauren ten to twenty minutes to wake him. As a result, Lauren took photographs of Austin's injuries, which were admitted at trial and depicted the scratching and bruising. Lauren testified that she also took Austin to a doctor, who instructed her take him to a hospital. Testimony was also elicited regarding the protective order against Ellen.

¶16 Just prior to Austin's last visit with Ellen and Trung, Lauren took photographs of Austin, which were presented to the jury. The photographs depicted Austin without "any marks or anything on his body." The State also offered two photographs of Austin taken shortly after the fatal incident by Oneida County Sheriff's Office Captain Terri Hook, which were admitted into evidence. The photographs depicted extensive bruising to Austin's body. In a second recorded interview on the night of the incident, which was played for the jury and admitted into evidence, Hook asked Ellen about the photographs that Hook took of Austin. Ellen responded that the bruise on Austin's hip might have been from "a diaper [being] on too tight."

¶17 The State also presented text messages between Ellen and Trung that...