(concurring in part; dissenting in part). I concur with the majority opinion’s disposition of the trial court’s evidentiary ruling, though I am constrained to point out that harmless error analysis does not end with a determination that a given error is not so offensive to the maintenance of a sound judicial system as to require reversal. People v Robinson, 386 Mich 551; 194 NW2d 709 (1972). Our harmless error test is bifurcated; having found that the judicial system was not compro*166mised, we must still inquire whether the error was harmless beyond a reasonable doubt. People v Gallon, 121 Mich App 183, 188-189; 328 NW2d 615 (1982); People v Swan, 56 Mich App 22; 223 NW2d 346 (1974), lv den 395 Mich 810 (1975). We should be able to say that not even one juror would have voted to acquit defendant but for the error. Gallon, supra.
In this case, the evidence of defendant’s culpability was quite strong. To the extent that the court’s erroneous ruling prevented defendant from explaining the origin of the $400 found on her person at the time of arrest, I note that the essence of defendant’s story reached the jury via Officer Gwizdala’s testimony. He indicated that, upon informing him of the existence of the cash, defendant explained that "she had got a $75.00 check from the credit union and she had cashed an income tax check”. In view of the strength of the prosecutor’s proofs, I am not persuaded that any juror would have voted to acquit had defendant rendered her proferred testimony concerning the $400.
I disagree, however, with the majority opinion’s analysis concerning the trial court’s order making payment of $72,500 in restitution a condition of defendant’s probation. I do find persuasive support in the record created at the sentencing hearing for a conclusion that defendant was responsible for the $72,500 loss she was order to restore. Moreover, I do not find the court’s conclusion tainted by its reference to defendant’s failure to testify at the sentencing hearing. In my view the court did not view that failure to testify as evidence; rather, it merely noted that it had no proofs to consider save those introduced by the prosecutor.
The court’s remarks indicate that its decision *167was squarely based upon the strength of the people’s case:
"I don’t even think it came close. The evidence is so strong, in my opinion, that she was involved in this $75,000 worth of theft through the year that it’s more than even a preponderance of the evidence. To me it’s clear and convincing and I don’t think a reasonable person could come to another conclusion, but that she was.”
Defendant is correct in asserting that the court erred in failing to consider her ability to pay. Pursuant to statute, "the court shall take into account the financial resources of the probationer and the nature of the burden that payment of restitution or costs will impose, with due regard to his or her other obligations”. MCL 771.3(5)(a); MSA 28.1133(5)(a), language added by 1982 PA 137, effective April 27, 1982. The prosecutor’s argument that application of the amended language to this case would constitute an unconstitutional ex post facto ruling is invalid. The statute was amended following the filing of this charge, but well in advance of trial. It does not assign criminal liability to conduct formerly legal, nor does it alter the definition of an offense. People v Marshall, 362 Mich 170, 174; 106 NW2d 842 (1961); People v Ruzicka, 19 Mich App 551, 552; 172 NW2d 916 (1969). Finally, the statutory provision is consistant with antecedent case law. See People v Lemon, 80 Mich App 737; 265 NW2d 31 (1978).
I would affirm both the conviction and the findings of fact made at the sentencing hearing. I would vacate the restitution order and remand for a new hearing, at which defendant’s ability to pay would be considered.