Sullivan v. State

FINAL COPY

                S20A0309. SULLIVAN v. THE STATE.


      BETHEL, Justice.

      A Richmond County jury found Monique Sullivan guilty of

felony murder predicated on aggravated assault in connection with

the death of Amelia Hiltz; the aggravated assaults of Maureen Floyd

and Kevin Mollenhauer; reckless conduct in regard to Grayson

Tucker and Olden Ganus; cruelty to children in the second degree in

regard to Sullivan’s son, J. S.; and three traffic offenses.1 Sullivan


      1 The crimes occurred on December 10, 2012. On September 3, 2013, a

Richmond County grand jury returned an 11-count indictment charging
Sullivan with: (1) felony murder of Amelia Hiltz based on aggravated assault;
(2) aggravated assault of Maureen Floyd; (3) aggravated assault of Kevin
Mollenhauer; (4) aggravated assault of Grayson Tucker; (5) aggravated assault
of Olden Ganus; (6) homicide by vehicle in the first degree with regard to Hiltz;
(7) serious injury by vehicle with regard to Floyd; (8) cruelty to children in the
second degree with regard to J. S.; (9) driving on the wrong side of the roadway;
(10) speeding; and (11) failure to obey a traffic control device.
       At a trial held from June 15 to 19, 2015, the jury found Sullivan guilty
of felony murder (Count 1), two counts of aggravated assault (Counts 2 and 3),
two counts of misdemeanor reckless conduct as lesser offenses of aggravated
assault (Counts 4 and 5), cruelty to children (Count 8), and the three
misdemeanor traffic offenses (Counts 9, 10, and 11). The jury found Sullivan
not guilty of homicide by vehicle and serious injury by vehicle (Counts 6 and
7). Sullivan was sentenced on July 23, 2015, to a term of life imprisonment for
now appeals, arguing that the evidence introduced at trial was

insufficient to support the jury’s guilty verdicts with regard to the

felony murder of Hiltz and the aggravated assaults of Floyd and

Mollenhauer. Sullivan also argues that the trial court erred by not

instructing the jury on accident, preventing Sullivan from

presenting evidence that she did not suffer from any mental illness,

and permitting the State to introduce inadmissible hearsay. Finding

no reversible error, we affirm.

      1. Viewed in the light most favorable to the verdicts, the

evidence presented at trial showed the following. Around 10:30 a.m.

on December 10, 2012, Sullivan was driving her Chevrolet Suburban

on Greene Street away from downtown Augusta. Her husband was




felony murder (Count 1) and concurrent prison terms of 20 years for each
aggravated assault (Counts 2 and 3), 10 years for cruelty to children (Count 8),
and 12 months each for two counts of reckless conduct (Counts 4 and 5), driving
on the wrong side of the roadway (Count 9), speeding (Count 10), and failure
to obey a traffic control device (Count 11).
      Through trial counsel, Sullivan filed a motion for new trial on August 14,
2015. Sullivan amended that motion through new counsel on May 6, 2019.
Following a hearing held on June 17, 2019, the trial court denied the motion
for new trial, as amended, on June 28, 2019. Sullivan filed a notice of appeal
on July 8, 2019. This case was docketed to this Court for its term beginning in
December 2019 and submitted for a decision on the briefs.
in the front passenger seat of the Suburban, and their four-year-old

son, J. S., was in a car seat in the back seat. Sullivan ran a red light

at the intersection of Greene Street, Broad Street, and the entry and

exit ramps for Riverwatch Parkway. After running the red light,

Sullivan’s Suburban veered slightly to the left into the opposite lane

of traffic — missing a westbound car in the intersection by inches —

before proceeding onto the Riverwatch Parkway exit ramp going the

wrong way (west in the eastbound lanes).2

     Riverwatch Parkway has two lanes running westbound and

two lanes running eastbound, with either a median and guardrails

or concrete barriers dividing the highway. The speed limit on

Riverwatch Parkway is 55 miles per hour. There is a “Do Not Enter”

sign posted at the bottom of the off-ramp that Sullivan drove up to

get onto Riverwatch Parkway, a raised median and painted yellow

stripes dividing the exit ramp lanes from the entrance ramp lanes,

and a “Wrong Way” sign further up from the “Do Not Enter” sign.


     2 The witness who observed Sullivan run the red light and proceed onto

the off-ramp testified that he “didn’t think they knew they were going the
wrong way.”
     Sullivan’s Suburban sped up and continued traveling the

wrong way in the left eastbound lane of Riverwatch Parkway. The

path taken by the Suburban forced four drivers, including Grayson

Tucker and Olden Ganus, to swerve from the left lane into the right

lane in order to avoid a head-on collision. Those drivers testified that

the Suburban did not slow down, swerve, switch lanes, or engage in

any other evasive maneuvers to warn or avoid colliding with other

vehicles. Ganus testified that Sullivan’s Suburban appeared to be

moving about 80 miles per hour when it passed him and was “just

barreling down the road.”

     After passing those four vehicles, Sullivan’s Suburban entered

a sharp curve near Eisenhower Park. At the time, three other

vehicles were entering the curve heading eastbound. The Suburban

collided head-on with a van being driven by Amelia Hiltz and was

then propelled about five to six feet into the air above the guardrail

to the right. The Suburban landed on the guardrail and started

bouncing, before flipping back over into the eastbound lanes of

Riverwatch Parkway. Hiltz’s vehicle suffered significant damage
and was pushed into the right shoulder of the eastbound side of the

road. As the Suburban lay flipped over, vehicles driven by Kevin

Mollenhauer and Maureen Floyd collided with it. The distance from

the off-ramp to the crash site was between 2.7 and 2.8 miles.

     Mollenhauer testified at trial that he had been traveling

eastbound on Riverwatch Parkway when he heard a crash and saw

the Suburban rotating in the air and begin flipping toward him. He

testified that, when he saw the Suburban, he “thought [he] was

probably going to die.” Mollenhauer turned his car to the right and

applied his brakes, and his vehicle collided with the rear of

Sullivan’s Suburban while it was overturned. His car then careened

into Hiltz’s vehicle where it had come to rest on the right shoulder.

The impact with the Suburban broke a window in Mollenhauer’s car,

and he had “a lot of glass that was all down [his] neck and [his]

arms.” He was able to drive a car following the crash, but he testified

that he had not owned or driven a car between that time and the

time of trial (almost two-and-one-half years later).

     Floyd testified that she had been driving in the right eastbound
lane on Riverwatch Parkway when the car in front of her slowed

“drastically.” She then heard the sound of twisting metal, which

appeared to be coming from above her. She “instinctively” moved

into the left lane, and she testified that it “felt like a car fell out of

the sky” onto her. Her car collided with Sullivan’s Suburban and was

spun back and to the right before coming to rest on the right

shoulder. Floyd suffered a number of injuries, including a ruptured

aorta and collapsed lungs, which required emergency treatment.

She was later treated in intensive care and was placed in a

chemically induced coma for almost three weeks. Floyd testified that

she did not return to work until May 2013, and that she has had to

slow down her business “tremendously.” She also testified that she

was in fear of being injured when Sullivan’s Suburban hit her, and

that it was the loudest sound she had ever heard.

     Just after the collisions, another witness who was driving

eastbound on Riverwatch Parkway arrived on the scene, stopped his

vehicle, and got out. As he walked toward Sullivan’s Suburban, he

saw that J. S. was trying to crawl out of the window and was about
to slide under the guardrail and into the westbound lanes of

Riverwatch Parkway. After J. S. got out of the Suburban, the

witness told J. S. to come toward him, and the two walked across

Riverwatch Parkway. J. S. appeared to be dazed and did not say

much. At the time, Sullivan and her husband were still strapped

into their seats and were talking to each other.

     Tiffany Jensen, a nurse, was driving eastbound on Riverwatch

Parkway just as the collision occurred, and she pulled onto the side

of the road. When she got out of her car and looked at the Suburban,

she saw J. S. screaming and attempting to get out of the vehicle.

After J. S. walked across Riverwatch Parkway, Jensen took a

blanket from her car and laid him on it. J. S. was bleeding, and

Jensen was concerned that he had a head injury. Jensen rode with

J. S. to the hospital in an ambulance, and stayed with him while he

had a CT scan. A pediatric emergency medicine physician diagnosed

J. S. with a hematoma, multiple superficial lacerations on the left

wrist, and a laceration on the scalp. His wounds later required

surgery.
     Karen LeBlanc, a pediatric emergency room nurse at the

hospital, took over caring for J. S. around 1:20 p.m. after Jensen left

the hospital. When LeBlanc came on duty, J. S. was asleep in a

trauma bay but woke up a few minutes later when a plastic surgeon

came in to examine his wrist. The surgeon asked LeBlanc to start

preparing a surgical checklist, which included information on J. S.’s

vital signs, medical history, and allergies. While she was doing so,

J. S. told LeBlanc that his father was trying to make Sullivan stop

the car, but Sullivan would not because they were “fussing.”

     When paramedics responded to the scene of the crash, Hiltz

had a decreased level of consciousness, and after she was extracted

from her van, she was transported to a local hospital. When Hiltz

arrived, she was unresponsive. She had multiple fractures of the

bones of her face, multiple lacerations to her face and head, multiple

bleeds within her head, two collapsed lungs, and multiple rib

fractures on both sides. She was placed on a ventilator and

transferred to the hospital’s intensive care unit. On July 23, 2013,

Hiltz died from complications arising from the injuries she sustained
in the crash.

     Sullivan was transported to a local hospital and treated for the

injuries she sustained in the collision. Sergeant Tim Owen

interviewed Sullivan at the hospital nine days later. Sullivan was

able to tell him what happened up until she got near Riverwatch

Parkway, but after that she could not provide him with any

information about how or why she was driving on Riverwatch

Parkway. In his investigation of the crash, Owen found no evidence

that Sullivan applied her brakes and concluded that the

combination of the limited line of sight in the curve and the speed of

both drivers (Sullivan and Hiltz) made it likely that neither had an

opportunity to react and apply the brakes before they collided.

     Corporal Charles Benson of the Richmond County Sheriff’s

Office Traffic Division was qualified as an expert in traffic crash

investigation and reconstruction. Corporal Benson testified that a

driver on Greene Street who crossed Broad Street would normally

go straight onto the entry ramp of Riverwatch Parkway and that a

person would have to make a conscious decision to steer left to end
up on the wrong ramp.3 Corporal Benson also testified that there

were at least five places along the route driven by Sullivan from the

off-ramp to the crash site where she could have safely pulled off the

road. Corporal Benson testified that a vehicle traveling in the left

eastbound lane of Riverwatch Parkway would not have sufficient

room on the left side of the road to avoid a collision with a vehicle it

met head-on in that lane. Nothing in Corporal Benson’s

investigation suggested that the emergency flashers or brake lights

on Sullivan’s Suburban were activated at the time of the crash, nor

did anything in the investigation indicate that Sullivan made any

effort to avoid the collisions.

      Scott Smith, a Team Commander for the Georgia State Patrol’s

Specialized Collision Reconstruction Team, downloaded data from

the airbag control module in Sullivan’s Suburban which showed that



      3  On cross-examination, Corporal Benson testified that, because the
intersection of Riverwatch Parkway, Greene Street, and Broad Street is
configured such that the on- and off-ramps intersect a crossroad, an
inadvertent wrong-way driving accident could occur. Corporal Benson also
testified that a publication by the National Transportation Safety Board
indicated that this type of intersection configuration created the highest risk
of wrong-way driving.
in the five seconds preceding the crash, the Suburban was traveling

between 75 and 78 miles per hour. Smith saw no indication that the

Suburban’s brakes were applied, and he testified that the data

indicated that the cruise control on the Suburban was set at 77 miles

per hour at the time of the crash. He testified that it was

“uncommon” for the cruise control to be set at the time of a crash.

     Sullivan argues that the evidence presented at trial and

summarized above was not sufficient to support the jury’s guilty

verdicts with regard to the felony murder of Hiltz and the

aggravated assaults of Floyd and Mollenhauer. In addition,

although not raised as error, as is this Court’s practice, we review

the sufficiency of the evidence for the other crimes for which

Sullivan was found guilty and sentenced: two counts of reckless

conduct, cruelty to children in the third degree, driving on the wrong

side of the roadway, speeding, and failure to obey a traffic control

device.

     (a) As to the felony murder of Hiltz (predicated on aggravated

assault) and the aggravated assaults of Floyd and Mollenhauer,
Sullivan argues that the State did not prove the element of intent.

Sullivan argues that although the State did not have to prove that

Sullivan had the specific intent to injure Hiltz, Floyd, and

Mollenhauer, the State was required to prove beyond a reasonable

doubt that Sullivan intended to drive her Suburban in the direction

of the victims, citing the Court of Appeals’ decision in Patterson v.

State, 

 (

) (2015). Sullivan further

argues that although the State produced some circumstantial

evidence in support of the theory that she intentionally drove the

wrong way on Riverwatch Parkway, the evidence did not exclude the

reasonable hypothesis that she did so accidentally.

     When evaluating the sufficiency of evidence as a matter of

federal due process under the Fourteenth Amendment of the United

States Constitution, the proper standard of review is whether a

rational trier of fact could have found the defendant guilty beyond a

reasonable doubt. Jackson v. Virginia, 

 (III) (B)

(

, 61 LE2d 560) (1979). This Court views the evidence in

the “light most favorable to the verdict, with deference to the jury’s
assessment of the weight and credibility of the evidence.” (Citation

and punctuation omitted.) Hayes v. State, 

 (

) (2013). The jury’s resolution of these issues “adversely to

the defendant does not render the evidence insufficient.” (Citation

omitted.) Graham v. State, 

 (1) (

)

(2017). Further, as a matter of Georgia statutory law, “[t]o warrant

a conviction on circumstantial evidence, the proved facts shall not

only be consistent with the hypothesis of guilt, but shall exclude

every other reasonable hypothesis save that of the guilt of the

accused.” OCGA § 24-14-6. Whether alternative hypotheses are

reasonable, however, is usually a question for the jury, and this

Court will not disturb the jury’s finding unless it is insufficient as a

matter of law. See Graves v. State, 

 (1) (

) (2019).

     Here, although there was some evidence from which the jury

could infer that Sullivan initially drove onto Riverwatch Parkway

accidentally, the evidence presented at trial also showed that, in

order to drive onto Riverwatch Parkway going the wrong direction,
Sullivan would have had to actively steer her vehicle to the left as

she passed through the intersection of Greene Street, Broad Street,

and Riverwatch Parkway. There were also warning signs on the off-

ramp indicating that anyone driving in that direction was going the

wrong way. Once Sullivan was on Riverwatch Parkway, she drove

at approximately 80 miles per hour, and four vehicles had to swerve

out of the way to avoid colliding with her. There were at least five

places on the three-mile stretch of Riverwatch Parkway where

Sullivan could have safely pulled over before entering the curve

where the collisions occurred. Despite these opportunities to stop

her vehicle, the evidence showed that she was driving in excess of

75 miles per hour with her vehicle’s cruise control engaged when she

collided with Hiltz.

     Viewed in the light most favorable to the verdicts, the evidence

presented by the State supports the jury’s verdicts as to the counts

for the felony murder of Hiltz (predicated on aggravated assault)

and the aggravated assaults of Floyd and Mollenhauer. The

evidence summarized above authorized the jury to determine that
the proved facts were not only consistent with Sullivan’s guilt but

that they also excluded every other reasonable hypothesis as to

whether she intended to commit the crimes — including that the

collisions were the result of an accident. Thus, when viewed as a

whole, the evidence presented at trial was sufficient to support

Sullivan’s convictions for felony murder and two counts of

aggravated assault as a matter of due process and under OCGA §

24-14-6. See Frazier v. State, 

, __ (2) (b) (

)

(2020). See also Brown v. State, 

 (1) (b) (

) (2017) (“It was for the jury to determine the credibility of the

witnesses and to resolve any conflicts or inconsistencies in the

evidence.” (citation and punctuation omitted)).

     (b) We have reviewed the evidence presented at trial as to the

remaining counts for which Sullivan was found guilty and

sentenced. We conclude that such evidence was sufficient as a

matter of due process to support the jury’s verdicts as to those

counts. Jackson, 

 (III) (B).

     2. Sullivan also argues that the trial court erred by not
instructing the jury on the defense of accident. While we agree with

Sullivan that the trial court erred, we determine that such error was

harmless.

     OCGA § 16-2-2 provides that no person shall “be found guilty

of any crime committed by misfortune or accident where it

satisfactorily appears there was no criminal scheme or undertaking,

intention,   or   criminal   negligence.”   “[T]o   authorize   a   jury

instruction[,] there need only be produced at trial slight evidence

supporting the theory of the charge.” (Citation and punctuation

omitted.) State v. Newman, 

 (2) (a) (

) (2019). “Whether the evidence presented is sufficient to

authorize the giving of a charge is a question of law.” (Citation and

punctuation omitted.) McClure v. State, 

 (1) (

) (2019).

     Sullivan submitted a written request to charge the jury on

accident, and contrary to the trial court’s ruling, there was at least
slight evidence supporting the giving of that charge.4 The witness

who saw Sullivan’s Suburban drive through the intersection onto

the Riverwatch Parkway off-ramp testified that he “didn’t think

they knew they were going the wrong way.” There was also evidence

showing that the on- and off-ramps were close together and could be

mistaken for each other.

      However, “[e]ven if the evidence presented authorized the

requested charge, the failure to give a requested charge which is

authorized by the evidence can be harmless error.” (Citation and

punctuation omitted.) Reddick v. State, 

 (1) (

) (2017). The test for determining whether a nonconstitutional

instructional error was harmless is “whether it is highly probable

that the error did not contribute to the verdict. And in determining

whether such an error is harmless, we assess the evidence from the


      4 The trial court based its decision on this Court’s decision in Davis v.

State, 

 (

) (1998). Sullivan contends that the trial court
relied upon Davis for the proposition that, because Sullivan did not present
evidence in support of the accident theory, she was precluded from asserting
accident as an affirmative defense. To the extent Sullivan’s assertion is correct,
the trial court erred. As we recently discussed in McClure, “the defendant must
present evidence supporting the affirmative defense only if the State’s evidence
does not support the defense.” 306 Ga. at 858 (1).
viewpoint of reasonable jurors, not in the light most favorable to the

verdicts.” (Citations and punctuation omitted.) Henry v. State, 

 (2) (c) (

) (2019). Here, although slight

evidence authorized the jury instruction on accident that Sullivan

requested, we determine that it is highly probable that the failure

to give the instruction did not contribute to the verdict.

     First, the evidence that authorized the charge, at most,

authorized the jury to determine that Sullivan may have driven onto

the off-ramp accidentally. But even that evidence was contradicted

by Corporal Benson’s testimony that a driver would have to

intentionally bear her vehicle to the left in order to drive up the off-

ramp in the manner that Sullivan did in this case (as opposed to

driving straight onto the on-ramp). Additionally, evidence that

Sullivan initially drove up the off-ramp accidentally had no bearing

on why Sullivan continued driving for approximately three miles at

between 75 and 80 miles per hour, passing multiple warning signs,

at least five places on Riverwatch Parkway where she could have

safely pulled her car onto the side of the road, and four motorists
who had to swerve from their lanes to avoid a head-on collision with

her Suburban. The evidence also showed that the cruise control in

Sullivan’s Suburban was engaged when she collided with Hiltz and

that Sullivan did not apply her brakes. Testimony from the State’s

collision reconstruction expert indicated that it was “uncommon” for

the cruise control to be set at the time of a crash. Thus, although

there was slight evidence suggesting that Sullivan’s initial actions

were accidental, there was compelling evidence presented by the

State that she acted intentionally.

     Second, although the jury was not instructed on the defense of

accident, it was instructed on the presumption of innocence and the

State’s burden of proof. The jury charge explicitly instructed the jury

that the State was required to prove the element of intent beyond a

reasonable doubt as to each intentional crime for which Sullivan was

charged and that it should acquit Sullivan of those charges if the

State did not carry that burden. Because the element of intent is

incompatible with Sullivan’s theory of accident, when the jury found

Sullivan guilty of crimes requiring a showing of intent, “it
necessarily must have discredited” the theory that her actions were

accidental. McClain v. State, 

 (2) (

) (2018).

See also Spence v. State, 

 (3) (

) (2019)

(holding that where the jury is fully charged on the State’s burden

to prove every element of the crime, including intent, any error in

not instructing as to accident is harmless).

     In light of the foregoing, we conclude that, even if the trial court

had given a charge to the jury on accident, it is highly probable that

the verdicts would have been the same. Thus, the trial court’s error

in failing to instruct the jury on accident was harmless.

     3. Sullivan next argues that the trial court erred by excluding

evidence regarding her lack of history of mental illness. Sullivan

argues that her alleged intent to commit the charged crimes was the

central issue in this case and that any evidence which tended to

disprove her intent was relevant and should have been admitted in

her trial. We disagree that the trial court abused its discretion by

prohibiting testimony on that issue.

     The State moved in limine to exclude the testimony of two
psychiatrists   who   examined    Sullivan   while   she   remained

hospitalized six days after the incident. The State argued that the

testimony of these witnesses was not relevant to any issue in the

case because Sullivan was not offering a defense premised on her

mental health or condition and because the psychiatrists planned to

testify that Sullivan suffered from no mental illness. The State also

argued that the testimony should be excluded because the

examination took place almost a week after the incident and

Sullivan had provided the psychiatrists with no evidence from which

they could ascertain her mental state at the time of the incident.

     Sullivan responded that the State’s case was implicitly

premised on the notion that Sullivan was homicidal or suicidal at

the time of the incident. Sullivan’s counsel indicated that the

defense did not plan to ask the psychiatrists whether, at the time of

the incident, Sullivan had the criminal intent to commit suicide or

homicide but would instead limit questioning to a presentation of

their findings that she had not been diagnosed with manic-

depression or major depression and that she had no history of
mental health problems.

     The trial court reserved ruling as to whether the psychiatrists

would be permitted to testify, indicating that it could not make a

final ruling until it saw how the State presented its case. The State

then asked that Sullivan be barred from referencing the

psychiatrists’ testimony in her opening statement. The trial court

offered Sullivan the opportunity to call the psychiatrists for voir dire

before ruling on the State’s request, but Sullivan declined. The trial

court then granted the State’s motion to bar Sullivan from

referencing the psychiatrists’ testimony in her opening statement.

     After the close of the State’s evidence, Sullivan renewed her

objections to the State’s motion in limine and again asked that the

testimony of the psychiatrists be admitted. The trial court overruled

the objection, noting that it agreed with the State’s position that it

would be impossible for the psychiatrists to learn anything from

Sullivan about the “immediacy of the accident that would be

beneficial in court.” The trial court also rejected Sullivan’s claim in

her motion for new trial that the evidence was relevant and should
have been admitted. Sullivan now argues that this series of rulings

was erroneous.

      OCGA § 24-4-401 provides that “relevant evidence” is “evidence

having any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or less

probable than it would be without the evidence.” OCGA § 24-4-402

(“Rule 402”) further provides that, as a general matter, “[a]ll

relevant evidence shall be admissible.”5 “Evidence which is not

relevant shall not be admissible.” Id. “Questions of relevance are

within the sound discretion of the trial court, and absent a clear

abuse of discretion, a court’s decision to exclude evidence on the

grounds of a lack of relevance will not be disturbed on appeal.”

Derrico v. State, 

 (3) (

) (2019).

      Here, Sullivan concedes that she did not raise any type of

mental health related defense for which evidence of psychological




      5 Under Rule 402, relevant evidence is admissible “except as limited by

constitutional requirements or as otherwise provided by law or by other rules,
as prescribed pursuant to constitutional or statutory authority, applicable in
the court in which the matter is pending.”
evaluations might have been relevant. See Virger v. State, 

 (9) (c) (

) (2019) (“[E]vidence of a criminal

defendant’s mental disability at the time of the alleged offense may

be admissible to support the defenses of insanity, delusional

compulsion, or self-defense[.]” (citations omitted)). See also Paul v.

State, 

 (2) (

) (2001) (holding that

“expert evidence was irrelevant to the state of mind necessary to

determine guilt in light of the defendant's refusal to assert an

insanity defense or that he was mentally ill at the time of the

conduct in question.”). Moreover, Sullivan also concedes that she has

pointed us to no legal authority under our Evidence Code for the

proposition that a defendant should be permitted to introduce expert

testimony that she has no history of mental illness in order to show

that she did not intend to commit a crime. Because we likewise find

no authority suggesting that evidence of Sullivan’s lack of mental

illness had “any tendency to make the existence of any fact that is

of consequence to the determination of the action more probable or

less probable,” OCGA § 24-4-401, we cannot say that the trial court
abused its discretion by excluding this evidence.

      4. Finally, Sullivan argues that the trial court abused its

discretion by admitting the following statement that J. S. made to

Karen LeBlanc at the hospital: “Daddy was trying to make Mama

stop, but she wouldn’t because they were fussing.” Sullivan argues

that the trial court erred by ruling at trial that this statement was

admissible under the excited utterance exception to the hearsay rule

set forth in OCGA § 24-8-803 (2). We disagree.6

      “A trial court’s decision to admit evidence is reviewed for an

abuse of discretion.” Jenkins v. State, 

 (2) (

) (2018). OCGA § 24-8-803 (2) provides that “[a] statement

relating to a startling event or condition made while the declarant

was under the stress of excitement caused by the event or condition”

shall not be excluded by the hearsay rule.

      While the declarant must still be under the stress or
      excitement that the startling event caused, the excited

      6 Because we determine that the trial court did not abuse its discretion

in admitting this testimony as an excited utterance, we do not consider
Sullivan’s contention that the trial court erred in its ruling on Sullivan’s
motion for new trial that this statement was also admissible under the residual
hearsay exception set forth in OCGA § 24-8-807.
     utterance need not be made contemporaneously to the
     startling event. It is the totality of the circumstances, not
     simply the length of time that has passed between the
     event and the statement, that determines whether a
     hearsay statement was an excited utterance.

(Citations and punctuation omitted.) Robbins v. State, 

 (2) (

) (2016).

     The record shows that the statement at issue was made by J.

S. to LeBlanc two to three hours after J. S., who was four years old

at the time, had been involved in a serious multi-vehicle crash in

which his mother had driven on the wrong side of the road at a high

rate of speed for several miles while apparently arguing with J. S.’s

father, narrowly missing four other motorists before colliding with

Hiltz, Floyd, and Mollenhauer. See United States v. Belfast, 

 (VI) (A) (11th Cir. 2010) (no abuse of discretion in admitting

statement made four to five hours after initial traumatic event as

excited utterance). The impact of the crash caused Sullivan’s

Suburban, in which J. S. was strapped into a car seat in the back

seat, to fly onto the guardrail and flip over. J.S. then freed himself

from the vehicle and was seen by witnesses at the scene to be dazed,
bleeding, and screaming. After being treated by a nurse at the scene

of the crash, J. S. was transported to a hospital and treated for

injuries (which later required surgery) without his parents being

with him at any point. He then fell asleep in the hospital’s trauma

bay and made the statement at issue to LeBlanc as she was

examining a wound to his arm after he awoke.

     Given J. S.’s age, the extent of his injuries, and the traumatic

circumstances leading to his hospitalization, we cannot say that the

trial court abused its discretion by determining that, under the

totality of the circumstances, his statement to LeBlanc related to “a

startling event or condition” and that he made the statement “under

the stress of excitement caused by the event or condition.” OCGA §

24-8-803 (2). See Robbins, 

 (2). This enumeration

of error therefore fails.

     Judgment affirmed. All the Justices concur.
                       DECIDED MAY 18, 2020.
     Murder. Richmond Superior Court. Before Judge Roper, Senior
Judge.
     Amanda J. Walker, for appellant.
     Natalie S. Paine, District Attorney, Joshua B. Smith, Assistant
District Attorney; Christopher M. Carr, Attorney General, Patricia B.
Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior
Assistant Attorney General, Matthew B. Crowder, Assistant Attorney
General, for appellee.