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Mullins v. Hernandez

Court of Appeals of Tennessee, Knoxville

February 27, 2018

REGINA MONTANNA MARIE MULLINS
v.
AMY PAIGE HERNANDEZ

          Session September 13, 2017

         Appeal from the Circuit Court for Hawkins County No. 37CC1-2017-CV-16 Alex Pearson, Judge

         Regina Mullins (petitioner) sought an order of protection against Amy Hernandez (respondent), the grandmother of one of petitioner's children. The parties were living together in an apartment when respondent allegedly threatened petitioner and her mother with a handgun. After a hearing, the trial court found that respondent did threaten petitioner, and that "there was a gun involved, " but held that these facts did not constitute "legally sufficient proof for an order of protection to be issued." We hold that the facts found by the trial court provide a legal basis for the issuance of an order of protection under the statutes governing such orders, Tenn. Code Ann. § 36-3-601 et seq. (2017). Consequently, we reverse the judgment of the trial court and remand for the issuance of a protective order.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed; Case Remanded

          Elizabeth R. McClellan, Johnson City, Tennessee, for the appellant, Regina Montanna Marie Mullins.

          Lesley A. Tiller, Jonesborough, Tennessee, for the appellee, Amy Paige Hernandez.

          Charles D. Susano, Jr., J., delivered the opinion of the court, in which D. Michael Swiney, C.J., and John W. McClarty, J., joined.

          OPINION

          CHARLES D. SUSANO, JR., JUDGE.

         I.

         Petitioner filed her petition for an order of protection on January 19, 2017. She alleged that during an argument with the respondent in their shared apartment, the respondent

pulled out a gun as I was in the room and I heard her threaten to shoot my mom as she was leaving with my daughter. . . . [Respondent] then started cocking the gun at my door and yelled it was fully loaded. I felt terrified. I told my grandmother [to] pick me up the next morning because [respondent] threatened to shoot me and my family (I had on video, she took my phone.)

         The court issued a temporary order of protection that same day. Ten days later, a hearing took place before the trial court. Respondent represented herself at the hearing.

         Four people testified: petitioner, her mother, respondent, and respondent's husband. Petitioner and her mother testified that respondent threatened them while brandishing a cocked and loaded nine-millimeter handgun. Respondent admitted getting the firearm out of a safe in her bedroom. She argued that she feared for her own safety. Respondent attempted to enter into evidence a statement or statements allegedly made by petitioner's father to respondent's husband. The trial court excluded this testimony as hearsay. Respondent testified that she made her threat after petitioner accidentally injured respondent's granddaughter by shutting petitioner's bedroom door on the granddaughter's foot.

         After the argument began, petitioner called her mother and asked her to come and pick up petitioner's infant daughter. Petitioner thus removed her daughter from the situation. Petitioner and her mother testified that petitioner was unable to leave the apartment herself because there was not room in her mother's vehicle. Early the next morning, petitioner called her grandmother to come get her and her things. Petitioner moved out of the apartment.

         The trial court delivered its findings of fact orally from the bench at the end of the hearing:

To me it's a close case, and I can understand how reasonable minds could differ with regard to it based on the fact that there was a gun involved. I find that there was legally insufficient proof to establish that Ms. Mullins was in fear of physical harm. It's a close call, and there was a gun involved, but based on the testimony here, the police were called out. The mother came and picked up a child and left with the child. It seems to me that a lot of this is based on - and I think I heard the word "drama, " and, of course, I don't mean to characterize a firearm - any time a firearm comes into a case as being drama because that's a potentially dangerous situation, but from the testimony I heard and the facts that were introduced here ...

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