IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs February 12, 2019

STATE OF TENNESSEE v. AUSTIN ANDREW MORSE

Appeal from the Criminal Court for Davidson County

No. 2015-B-1509 Steve R. Dozier, Judge

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No. M2018-00430-CCA-R3-CD

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Defendant, Austin Andrew Morse, was indicted by the Davidson County Grand Jury for 

six counts of aggravated child abuse, four counts of aggravated child neglect, and four 

counts of aggravated child endangerment. Pursuant to a plea agreement, Defendant 

pleaded guilty to two counts of aggravated child neglect. The remaining counts were 

dismissed. It was agreed that Defendant’s sentences would be served concurrently with a 

70 percent release eligibility date. The trial court would determine the length of the 

sentences. Following a sentencing hearing, the trial court imposed sentences of 19 and 

21 years for Defendant’s convictions. In this appeal as of right, Defendant contends that 

the trial court abused its discretion in imposing the length of his sentences. Having 

reviewed the entire record and the briefs of both parties, we affirm the judgments of the 

trial court. 

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

THOMAS T. WOODALL, J., delivered the opinion of the court, in which ROBERT W.

WEDEMEYER and TIMOTHY L. EASTER, JJ., joined.

Bernard F. McEvoy, Nashville, Tennessee, for the appellant, Austin Andrew Morse.

Herbert H. Slatery III, Attorney General and Reporter; Garrett D. Ward, Assistant 

Attorney General; Glenn R. Funk, District Attorney General; and Pamela Anderson, 

Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

Sentencing hearing

In July 2014, Amber Leedy rented a room from Defendant and lived there with her 

two-year-old son, J.D. Defendant lived there with his girlfriend Ashley Pesterfield and 

her four children, two of whom were fathered by Defendant. Ms. Leedy testified that 

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Defendant cared for the children while she and Ms. Pesterfield worked as prostitutes. 

Ms. Leedy gave Defendant all of the money she made as a prostitute, and Defendant gave 

her heroin. She testified that Defendant, in the children’s presence, abused substances, 

including “[h]eroin[ ], crack, pills, weed . . . pretty much everything you can name.” Ms. 

Leedy testified that at some point, she began noticing bruises on her son. She asked 

Defendant about the bruises, and he told her that J.D. and another child were “playing 

rough.” Ms. Leedy also noticed that some of her son’s hair was missing and that he 

seemed to have pain in his arms and legs. Ms. Leedy testified that she wanted to take the 

child to the doctor, but Defendant “told [her] that he wanted [the] bruises to go away 

before so that he wouldn’t get in trouble for it.” 

Carmella Duke, Ms. Leedy’s mother, testified that on August 5, 2014, she 

received a phone call from Ms. Leedy. Ms. Duke heard a female voice in the background 

telling Ms. Leedy that she needed to take her son to the hospital or he would die. Ms. 

Duke then heard a male voice say that Ms. Leedy would not take the child anywhere. 

Ms. Duke drove to Ms. Leedy’s residence and knocked on the door for 30 minutes before 

she was allowed to enter. When she entered, she asked Defendant where her grandson 

was, and Defendant told her that he did not know. Ms. Duke began opening doors and 

found her grandson in a bedroom. She testified that he held his arm over his face in a 

protective manner and whispered, “I be good, I be good.” He was wearing only a diaper, 

and his mouth was bleeding. Ms. Duke told Defendant that she was taking the child and 

that Defendant was “going to jail.” Ms. Duke pushed past Defendant and exited the 

house. She was met by emergency responders, who had been contacted by Ms. Leedy. 

J.D. and two other children who were present in the home were transported to the 

hospital. J.D. had severe bruising and swelling around his eyes. He also had two 

fractured arms, a pelvic fracture, and a large patch of hair missing from the top of his 

head. 

Ashley Pesterfield testified for Defendant. She testified that in December 2008, 

she and her two daughters moved in with Defendant. She testified that Defendant 

“basically took it upon himself to help [her] and be a father to [her] kids. . . .” Ms. 

Pesterfield testified that Defendant “worked hard” and they “lived very nice.” She 

testified, “[m]e and my girls had everything we needed.” Defendant and Ms. Pesterfield 

had a daughter born in 2011 with Down Syndrome. Ms. Pesterfield testified that 

Defendant “was the perfect father by her” and that he was very involved in her 

caretaking. 

Ms. Pesterfield testified that she began taking prescription pain medication 

following a serious car accident in 2011. She testified that she had “problems [ ] with 

addiction” since childhood, but that she had remained sober since her release from 

incarceration for a prior conviction in Texas. She testified that when she was prescribed 
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pain medication following the accident that “it was like starting my – my addiction all 

over again.” Defendant also developed an addiction to pain medication. 

In the summer of 2014, Ms. Pesterfield met Ms. Leedy and offered to rent her a 

bedroom because Ms. Pesterfield “was trying to help [Ms. Leedy] out basically.” Ms. 

Pesterfield knew that Ms. Leedy was a heroin addict. Ms. Pesterfield acknowledged that 

she also used heroin. She testified that she rode with Ms. Leedy and sold heroin while 

Ms. Leedy engaged in prostitution. 

Ms. Pesterfield testified that Ms. Leedy was messy and “unsanitary.” She testified 

that Ms. Leedy “was real nonchalant” about J.D., and that “[s]he would make comments 

like, he was a methadone baby, that’s why he cried so much.” Ms. Pesterfield testified 

that Ms. Leedy “definitely neglected” her son. Ms. Pesterfield testified that she noticed 

bruises on J.D.’s back and forehead and that he looked “like he ha[d] the flu.” Ms. 

Pesterfield told Ms. Leedy that she needed to take him to a doctor, and Ms. Leedy 

responded that she did not want to take him to a doctor because she was afraid he would 

be removed from her custody. Ms. Pesterfield testified that J.D. was with Ms. Leedy 

most of the time, but that Defendant cared for him “three or four nights” a week. Ms. 

Pesterfield testified that she never saw Defendant harm a child. She described Defendant 

as “humble and caring.” 

On August 5, 2014, Ms. Pesterfield accompanied Ms. Leedy when she went to 

prostitute herself. Afterward, they bought heroin and went to Walmart to buy diapers. 

Defendant was alone with the children while they were gone. Ms. Pesterfield testified 

that J.D. did not have any injuries to his mouth before they left. 

Ms. Pesterfield acknowledged that she and Defendant were substance abusers and 

that they “sold drugs daily.” She acknowledged that they used drugs in the presence of 

the children who lived in the home. Police found drug paraphernalia and prescription 

painkillers that were not prescribed to anyone living in the residence. Ms. Pesterfield 

acknowledged that her young daughters, who were fathered by Defendant, had tested 

positive for cocaine and morphine and that the children had previously been removed 

from their custody. 

Following the sentencing hearing, the trial court entered a written order in which 

the trial court found that five enhancement factors applied to Defendant’s sentence: 1) 

Defendant had a history of criminal convictions or criminal behavior; 2) the victim was

particularly vulnerable because of age or disability; 3) Defendant treated a victim, or 

allowed a victim to be treated, with exceptional cruelty; 4) Defendant previously failed to 

comply with the conditions of release; and 5) Defendant abused a position of private trust 

in a manner that facilitated the commission of the offense. See T.C.A. § 40-35-114(1), 
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(4), (5), (8), and (14). The trial court found no mitigating factors applicable to 

Defendant’s sentence. The trial court sentenced Defendant to serve 19 and 21 years’ 

incarceration for his two convictions, and the trial court ordered Defendant’s sentences to 

be served concurrently. 

Analysis

Defendant contends that the trial court departed from the purposes and principles 

of the Sentencing Act in imposing his sentences. Specifically, Defendant asserts that the 

trial court misapplied various enhancement factors and failed to apply mitigating factors 

in reaching its decision. The State responds that the evidence supports the trial court’s 

application of enhancement factors and decision not to apply any mitigating factors. 

Our standard of review of the trial court’s sentencing determinations is whether 

the trial court abused its discretion, and we apply a “presumption of reasonableness to 

within-range sentencing decisions that reflect a proper application of the purposes and 

principles of our Sentencing Act.” State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012). The 

party challenging the sentence on appeal bears the burden of establishing that the 

sentence was improper. T.C.A. § 40-35-401 (2017), Sentencing Comm’n Cmts. In 

determining the proper sentence, the trial court must consider: (1) the evidence, if any, 

received at the trial and the sentencing hearing; (2) the presentence report; (3) the 

principles of sentencing and arguments as to sentencing alternatives; (4) the nature and 

characteristics of the criminal conduct involved; (5) evidence and information offered by 

the parties on the mitigating and enhancement factors set out in Tennessee Code 

Annotated sections 40-35-113 and -114; (6) any statistical information provided by the 

administrative office of the courts as to sentencing practices for similar offenses in 

Tennessee; (7) any statement the defendant made in the defendant’s own behalf about 

sentencing; and (8) the result of the validated risk and needs assessment conducted by the 

department and contained in the presentence report. See T.C.A. § 40-35-210; State v. 

Taylor, 63 S.W.3d 400, 411 (Tenn. Crim. App. 2001). The trial court must also consider 

the potential or lack of potential for rehabilitation or treatment of the defendant in 

determining the sentence alternative or length of a term to be imposed. T.C.A. § 40-35-

103 (2017). 

Trial courts are “required under the 2005 amendments to ‘place on the record, 

either orally or in writing, what enhancement or mitigating factors were considered, if 

any, as well as the reasons for the sentence, in order to ensure fair and consistent 

sentencing.’” Bise, 380 S.W.3d at 698-99 (quoting T.C.A. § 40-35-210(e)). Under the 

holding in Bise, “[a] sentence should be upheld so long as it is within the appropriate 

range and the record demonstrates that the sentence is otherwise in compliance with the 

purposes and principles listed by statute.” Id. at 709-10. 
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We conclude that the trial court properly sentenced Defendant. Defendant was 

convicted of two counts of aggravated child neglect of a child under the age of eight, a 

Class A felony. As a Range I offender, Defendant’s sentencing range was 15 to 25 years 

by operation of law. T.C.A. §§ 39-15-402(b), 40-35-112(a)(1). The trial court 

considered the relevant principles and sentenced Defendant to within range sentences of 

19 and 21 years for his convictions. 

The record reflects that the trial court considered five enhancement factors in 

determining Defendant’s sentences. The trial court found no mitigating factors. 

Defendant challenges the trial court’s consideration of four enhancement factors. 

Defendant does not challenge the trial court’s consideration of enhancement factor (4), 

that the victims were particularly vulnerable. See T.C.A. §40-35-114(4). The record 

supports consideration of the four enhancement factors that Defendant challenges. 

Relevant to enhancement factor (1), the pre-sentence report admitted as an exhibit 

at the sentencing hearing reflects that Defendant had four prior criminal convictions. 

Additionally, Ms. Pesterfield and Ms. Leedy testified that Defendant used and sold drugs. 

This evidence is sufficient to support the trial court’s consideration of this enhancement 

factor. We note that “the application of a single enhancement factor is sufficient to 

justify the imposition of the maximum sentence in the range.” State v. James Moore, No. 

W2015-01483-CCA-R3-CD, 2016 WL 7654955, at *5 (Tenn. Crim. App. Aug. 23, 

2016), no perm. app. filed. 

Defendant also contends that the trial court failed to consider his allocution, in 

which Defendant expressed his remorse, and that the trial court failed to consider 

Defendant’s potential for rehabilitation in mitigation. However, the trial court’s written 

order specifically states that it considered the “extensive proof” presented by both parties 

at the sentencing hearing, including Defendant’s allocution. 

We conclude that the trial court properly sentenced Defendant. The trial court 

considered the relevant principles and sentenced Defendant to a within-range sentence for 

each conviction. As such, Defendant is not entitled to relief. 

CONCLUSION

Based on the foregoing, the judgments of the trial court are affirmed. 

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THOMAS T. WOODALL, JUDGE