Session September 13, 2017
from the Circuit Court for Hawkins County No.
37CC1-2017-CV-16 Alex Pearson, Judge
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.
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.
A. Tiller, Jonesborough, Tennessee, for the appellee, Amy
Charles D. Susano, Jr., J., delivered the opinion of the
court, in which D. Michael Swiney, C.J., and John W.
McClarty, J., joined.
CHARLES D. SUSANO, JR., JUDGE.
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.)
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.
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
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.
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