ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN E. JENNINGS, JUDGE

DIVISION II

CACR 01-240

September 26, 2001

ANTONIO BERNARD VINSON COOPER APPEAL FROM CRITTENDEN COUNTY

APPELLANT CIRCUIT COURT

VS.

HONORABLE JOHN N. FOGLEMAN,

CIRCUIT JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

Antonio Bernard Vinson Cooper pleaded guilty in 1993 to burglary and theft of property. For the burglary conviction, he received ten years' probation with five years suspended and was ordered to pay fines, costs, and restitution. For the theft of property conviction, he received a five-year suspended sentence and was ordered to pay a fine. In 1996 the State filed a petition to revoke both of appellant's suspended sentences. After pleading guilty, appellant received five years in prison with an additionalfive-year suspended sentence for burglary, and appellant received three years in prison with an additional seven-year suspended sentence for theft of property.

In July 2000, the State once again filed a petition to revoke appellant's suspended sentences alleging that he had violated the terms of his suspended sentences by committing burglary, theft of property, fleeing, possession of stolen property, associating with criminals, failure to pay fines and costs, and failure to notify authorities of his change of address. After a hearing, the trial judge found that appellant had violated the conditions of his suspended sentences by committing possession of stolen property and trespass. He was sentenced to serve ten years on the burglary conviction and seven years on the theft of property conviction, with those sentences running consecutively. Appellant argues on appeal that the trial court erred by revoking his probation without direct proof that he committed burglary and that the trial court abused its discretion in sentencing him to consecutive terms of imprisonment. We disagree and affirm.

Officer Joseph Forthman testified that a dispatcher notified him of a burglary in progress and stated that the complainant ran out of her house when he arrived and pointed in the direction of the street toward an alley. Forthman stated that he saw three subjects walking with merchandise in their hands. He stated thatwhen the subjects saw his police car, they dropped the goods and fled. Forthman specifically recalled seeing appellant holding a boom box because Forthman's car lights were shining directly on appellant. The complainant identified the items, including the boom box, as belonging to her and as having come from inside her house. Forthman stated that appellant was caught later that evening while trying to break into a trailer where he did not live. To revoke a suspended sentence, the trial court must find by a preponderance of the evidence that the defendant has inexcusably failed to comply with a condition of his suspension. Shaw v. State, 65 Ark. App. 186, 986 S.W.2d 129 (1999). On appellate review, we uphold a revocation unless it is clearly against a preponderance of the evidence. Ramsey v. State, 60 Ark. App. 206, 959 S.W.2d 765 (1998).

Appellant argues that the trial court should have granted his motion for dismissal because the State produced no direct evidence that placed him inside of an occupiable structure, which is an element of burglary. However, the trial court did not revoke appellant's suspended sentences based on a finding that he had committed the offense of burglary. Instead, appellant's revocation was based on findings that appellant had violated the conditions of his suspended sentences by committing theft by receiving and trespass, the latter of which is a lesser-included offense ofburglary. See Allen v. State, 53 Ark. App. 225, 920 S.W.2d 860 (1996). In any event, appellant does not contest the finding that he committed theft by receiving. The State must prove only one violation to establish that appellant violated the conditions of his suspended sentences. Brock v. State, 70 Ark. App. 107, 14 S.W.3d 908 (2000).

Next, appellant argues that the trial judge decided to run the sentences consecutively as an afterthought instead of using his discretion and that the judge failed to explain why he made such a punitive ruling. Arkansas Code Annotated section 5-4-403(a) (Repl. 1997) provides that "when multiple sentences of imprisonment are imposed on a defendant convicted of more than one offense, including an offense for which a previous suspension or probation has been revoked, the sentences shall run concurrently unless the court orders the sentences to run consecutively." Whether multiple sentences are to be served concurrently or consecutively is a matter within the discretion of the trial judge. Chancellor v. State, 14 Ark. App. 64, 684 S.W.2d 831 (1985). Here the trial judge noted that he was departing from the sentencing grid by sentencing appellant to the maximum with those sentences running consecutively because appellant had consistently failed to take advantage of the previous opportunities given to him by the court to live a law-abiding life. Under these circumstances, we cannotsay that the trial judge failed to exercise discretion or that he abused his discretion in ordering the sentences to run consecu tively.

Affirmed.

Baker and Crabtree, JJ., agree.