Eichelberger v. State

Natal EICHELBERGER and Johnny Elam v. STATE
of Arkansas

95-992                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered February 26, 1996


1.   Constitutional law -- ex post facto laws prohibited. -- The
     Constitution of the United States, art. 1,  9 and 10,
     prohibits Congress or the states from enacting ex post facto
     laws; a law is prohibited as ex post facto when it authorizes
     punishment for a crime because of an act previously done and
     which was not a crime when done, makes more burdensome the
     punishment for a crime, after its commission, or deprives one
     charged with a crime of any defense that was available
     according to law at the time when the act was committed; the
     retroactive enhancement of a penalty is just as onerous as the
     retroactive creation of a penalty.

2.   Constitutional law -- ex post facto laws -- acts constituted
     violation of Ex Post Facto Clause -- increased burden of
     punishment to juveniles -- punitive statutory scheme. -- The
     supreme court held that Acts 61 and 62 of 1994, Ark. Code Ann.
      9-27-331(d) (Supp. 1995), as applied to appellants,
     constituted a violation of the Ex Post Facto Clause of the
     United States Constitution; the 1994 acts, which raised the
     amount of juvenile restitution from $2,000 to $10,000,
     increased the burden of the punishment to the juveniles; the
     statutory scheme was punitive because it allowed for
     revocation of probation for nonpayment of restitution. 

3.   Statutes -- statutory construction -- juvenile restitution --
     statutory limits apply per victim. -- The statutory limits on
     juvenile restitution apply per victim; thus, the supreme court
     held, the trial court erred in applying the 1994 enhanced-
     restitution acts to appellants and in ordering them to pay in
     excess of $2,000 to one of the victims; the supreme court
     accordingly reversed and remanded the part of the order
     relating to that victim.

4.   Evidence -- hearsay -- invoice was written assertion made out
     of court and offered to prove amount of damages. -- An invoice
     addressed to a victim's insurance agent from a windshield-
     repair company that reflected the amount to be charged for
     repairing the victim's broken windshield was hearsay because
     it was a written assertion made out of court and offered into
     evidence to prove the amount of damages.

5.   Appeal & error -- harmless error -- no reversal where evidence
     was merely cumulative. -- The supreme court will not reverse
     where the evidence erroneously admitted was merely cumulative.

6.   Evidence -- admission of invoice was not merely cumulative --
     victim never testified to amount of his damages -- reversible
     error. -- Where the State contended that one of the victims
     testified to the amount of his damages aside from an invoice
     for $511.59, and that, as a result, the invoice, which was
     hearsay, was merely cumulative, the supreme court concluded
     that the record did not support the State's contention; the
     victim never testified to the amount of his damages but
     instead stated that he did not file a claim with his insurance
     company because his insurance policy had a $500 deductible
     provision; this statement, however, did not constitute proof
     of the amount of the damages because the victim would have
     made it had his damages been anywhere between $1 and $500;
     thus, the supreme court reversed and remanded the part of the
     order relating to restitution to that victim. 

7.   Evidence -- admission of itemized statement reflecting damages
     did not prejudice appellants. -- Where the trial court allowed
     the State to introduce an itemized statement reflecting
     damages to one of the victims in the amount of $1,374.70, but
     in making their hearsay objection, appellants stated that they
     would object to anything other than $382.00, and the trial
     court ordered appellants to make restitution to the victim in
     the amount of $382, the supreme court held that the ruling
     allowing the entire itemized statement into evidence did not
     prejudice appellants.

8.   Appeal & error -- sufficiency of evidence -- principles of
     appellate review. -- In determining the sufficiency of
     evidence, an appellate court reviews all of the evidence
     introduced at trial, whether correctly or erroneously
     admitted; if substantial evidence was presented, but
     prejudicial trial error occurred, the case is reversed and
     remanded; if, however, after considering all of the evidence,
     whether correctly or erroneously admitted, the party having
     the burden of proof failed to prove its case by the
     appropriate standard, the case is reversed and dismissed; if
     the evidence was sufficient, the appellate court considers
     other assignments of trial error; if it was insufficient, the
     case is reversed and dismissed, and there is no need to
     consider the other arguments; this is the reason an appellate
     court routinely first considers sufficiency of the evidence.


     Appeal from Johnson Chancery Court; Benny E. Swindell,
Circuit-Chancery Judge; affirmed in part; reversed and remanded in
part.
     William M. Pearson, for appellant Natal Eichelberger.
     Roderick H. Weaver, for appellant Johnny Elam.
     Winston Bryant, Att'y Gen., by:  Gil Dudley, Asst. Att'y Gen.,
for appellee.

     Robert H. Dudley, Justice.February 26, 1996 *ADVREP1*





NATAL EICHELBERGER AND JOHNNY
ELAM,
                    APPELLANTS,

V.

STATE OF ARKANSAS,
                    APPELLEE.



95-992


APPEAL FROM THE JOHNSON COUNTY
CHANCERY COURT,
NO. J94-175,
HON. BENNY E. SWINDELL,
CIRCUIT/CHANCERY JUDGE,




AFFIRMED IN PART; REVERSED AND
REMANDED IN PART.




                   Robert H. Dudley, Justice.

     Appellants Natal Eichelberger and Johnny Elam, along with two
other young men, destroyed property owned by the Lamar School
District, United States Corps of Engineers, Gary Hamilton, and Jack
Cline, Sr.  The juvenile division of chancery court conducted a
bifurcated hearing at which it first adjudged appellants to be
delinquents and then determined the amount of restitution they are
to make.  Before the restitution phase of the hearing began,
appellants presented a motion in limine asking that restitution be
limited to $2,000 for each victim.  The basis for the motion was
that the property was destroyed on April 2, 1994, and at that time,
restitution could not exceed $2,000 for each victim.  Ark. Code
Ann.  9-27-331(d) (Repl. 1993).  The State contested the motion
and contended that the amount of allowable restitution was raised
to $10,000 by Acts 61 and 62 of 1994.  Appellants responded that
the 1994 acts became effective on August 26, 1994, or four months
after defendants destroyed the property, and that the retroactive
application of the 1994 acts would violate the ex post facto
provision of the Constitution of the United States.  The trial
court denied appellants' motions and ordered them to pay $9,956.47
to one of the victims, Jack Cline, Sr.  The trial court ordered
appellants to make restitution of less than $2,000 to the Lamar
School District, the Corps of Engineers, and Gary Hamilton.  
     Appellants' first point of appeal is that the trial court's
ruling applying the 1994 acts violated the Ex Post Facto Clause. 
The argument is well taken.  Sections 9 and 10 of Article I of the
Constitution of the United States prohibit Congress or the States
from enacting ex post facto laws.  A law is prohibited as ex post
facto when it authorizes punishment for a crime because of an act
previously done and which was not a crime when done, "makes more
burdensome the punishment for a crime, after its commission," or
deprives one charged with a crime of any defense that was available
according to law at the time when the act was committed.  Beazell
v. Ohio, 269 U.S. 167, 169-70 (1925) (emphasis added).  The
retroactive enhancement of a penalty is just as onerous as the
retroactive creation of a penalty.  Calder v. Bull, 3 U.S. (3
Dall.) 386 (1798).  Several state and federal courts have
considered whether restitution is a "penalty" that falls within the
Constitutional prohibition of ex post facto laws, and they are
unanimous in holding that an increase in the amount of restitution
constitutes the increase of a penalty.
     In Spielman v. State, 471 A.2d 730 (Md. App. 1984), the
Maryland Court of Appeals remanded a case in which the defendants
were ordered to pay restitution for malicious destruction of
property under a statute passed after the commission of the
offense.  The statute added insurance companies to the victims that
could receive restitution.  Id. at 733.  The State argued that the
statute was procedural and provided "`only for a new method for
enforcement of a preexisting right.'"  Id.  The trial court agreed,
but that appellate court vacated and remanded the judgment, stating
that it viewed the amended statute as "creating a right in [third-
party payors] not existing under the previous statute and,
therefore, one of substance and not procedure."  Id.  In response
to the State's argument that restitution is not punishment, the
court said, "It can hardly be contended that one who has been
ordered to pay restitution, as a condition of probation, and is
subject to revocation of that probation for failure to make
payment, has not received punishment."  Id. at 734.  The opinion
concludes, "Having determined that restitution of these amounts is
punishment, it follows that to require the appellants to pay
restitution in far greater amounts to the third party payors is to
increase that punishment."  Id. at 735.
     The Arizona Court of Appeals was confronted with facts
comparable to the facts of the case at bar in the case of In the
Matter of the Appeal in Maricopa County Juvenile Action No. J-
92130, 677 P.2d 943 (Ariz. App. 1984).  There, the statute
authorized the juvenile court, when committing a delinquent to the
Department of Correction, to also impose a monetary assessment and
to order restitution.  Id. at 944.  The offense was committed on
July 5, 1983, and the law went into effect on July 27, 1983. Id. 
The State argued that "in light of the unique procedures involved
in the juvenile court setting and particularly, the focus on
rehabilitation in the dispositional phase," restitution is not
punitive in nature, but only a part of the State's scheme of
rehabilitation of juveniles.  Id. at 945.  The court agreed with
the State that the ex post facto prohibition only applies to laws
dealing with criminal punishment, but held that the rehabilitative
focus of juvenile proceedings is not dispositive.  Id. at 946.  It
noted that the United States Supreme Court in Breed v. Jones, 421 U.S. 519 (1975) made applicable in juvenile proceedings "those
constitutional guarantees associated with traditional criminal
prosecutions," with the exception of jury trial.  Id.  It held that
it was "too late in the day" to conclude that dispositions for
juveniles, which include incarceration, fines, and restitution,
"are not to be considered criminal sanctions for the purposes of
the ex post facto clause."  Id.  The court took note of the fact
that sanctions had been increased to permit the imposition of a
fine and restitution where they were not previously permissible,
and in addition, the conditions of parole had been modified to make
payment of the fines and restitution a condition of release.  Id. 
It concluded that this was the type of "legal disadvantage"
contemplated by Weaver v. Graham, 450 U.S. 24 (1981), in which the
Supreme Court set out the following two-pronged test to determine
whether there is an ex post facto violation: (1) The statute must
be retrospective, and (2) the statute must disadvantage the
offender.
     In People v. Slocum, 539 N.W.2d 571 (Mich. App. 1995), the
Michigan Court of Appeals held that retroactive application of a
statute authorizing the court to order the defendant to pay for
extradition costs increased the defendant's punishment, as it
increased the amount of restitution for which he would be
responsible, and thereby violated the Ex Post Facto Clause.  In
State v. Short, 350 S.E.2d 1 (W. Va. 1986), the West Virginia
Supreme Court of Appeals held that retroactive application of the
Victim Crime Protection Act, which requires the defendant to pay
restitution beyond his period of probation, increased his
punishment and was an ex post facto application of law.  Finally,
the Sixth Circuit Court of Appeals in United States v. Streebing,
987 F.2d 368 (6th. Cir. 1993) and in United States v. Jewett, 978 F.2d 248 (6th. Cir. 1992), held that expanded definitions of
"victim" in acts passed after the offenses were committed created
additional rights and increased applicable penalties, making
retroactive application ex post facto.
     Acts 61 and 62 of 1994, as applied to appellants, constituted
a violation of the Ex Post Facto Clause.  The 1994 acts increased
the burden of the punishment to the juveniles.  The scheme of the
statute is punitive, as it allows for revocation of probation if
restitution is not paid.  See Ark. Code Ann.  9-27-339(f) (Repl.
1993 & Supp. 1995); compare with In the Matter of the Appeal in
Maricopa County Juvenile Action No. J-92130, 677 P.2d  at 946.  The
trial court ordered appellants to pay Jack Cline, Sr., more than
$2,000.  We have held that the statutory limits apply per victim. 
Leach v. State, 307 Ark. 201, 819 S.W.2d 1 (1991).  Thus, the trial
court erred in applying the 1994 acts to appellants and in ordering
them to pay in excess of $2,000.00 to Jack Cline, Sr.  Accordingly,
we reverse and remand the part of the order relating to Jack Cline,
Sr. 
     Appellants next contend that the trial court erred in
admitting proof of Gary Hamilton's damages.  The trial court
allowed Gary Hamilton to prove his damages with an invoice from a
windshield-repair company that was addressed to Hamilton's
insurance agent.  It reflected that the glass company would charge
the insurance company $511.59 to replace the broken windshield. 
The invoice was hearsay because it was a written assertion made out
of court and offered into evidence to prove the amount of damages. 
See Ark. R. Evid. 800 and 801; Wilburn v. State, 317 Ark. 73, 876 S.W.2d 555 (1994).  The State tacitly recognizes that the ruling 

was erroneous, but contends that it was harmless.
     We have often held that we will not reverse where the evidence
erroneously admitted was merely cumulative.  See Williams v.
Southwestern Bell, 319 Ark. 626, 893 S.W.2d 770 (1995).  Here, the
State contends that Hamilton testified to the amount of his damages
aside from the invoice, and as a result, the invoice was merely
cumulative.  The record does not support the State's contention. 
Gary Hamilton never testified to the amount of his damages.  The
closest he came to such testimony was when he stated that he did
not file a claim with his insurance company because his insurance
policy had a $500 deductible provision.  However, this did not
constitute proof of the amount of the damages, as he would have
made that statement if his damages were anywhere between $1.00 and
$500.  Thus, we must reverse and remand the part of the order
relating to restitution to Gary Hamilton.  
     Appellants next contend that the trial court made an erroneous
evidentiary ruling when it allowed the State to introduce an
itemized list of damages to prove the amount of restitution for the
Corps of Engineers.  We need not address the argument in any
detail.  The itemized statement reflected damages to the Corps of
Engineers in the amount of $1,374.70, but in making their hearsay
objection, appellants stated, "We would object to anything other
than the $382.00."  The trial court ordered appellants to make
restitution to the Corps of Engineers in the amount of $382.00. 
Thus, the ruling allowing the entire itemized statement into
evidence did not prejudice appellants. 
     In their final argument, appellants contend that the trial
court erred in refusing to grant their motions for a directed
verdict on that part of the bifurcated trial involving 
restitution.  In making the argument, they first contend that the
trial court erred in admitting evidence as set out in the first
three points of appeal, and they next contend that, when the
erroneously admitted evidence is excluded, the remaining evidence
is insufficient to support the orders of restitution.  The argument
is based upon a false premise about appellate review.  In
determining the sufficiency of evidence, an appellate court reviews
all of the evidence introduced at trial, whether correctly or
erroneously admitted.  Findley v. State, 300 Ark. 265, 778 S.W.2d 624 (1989).  If substantial evidence was presented, but prejudicial
trial error occurred, the case is reversed and remanded.  If,
however, after considering all of the evidence, whether correctly
or erroneously admitted, the party having the burden of proof
failed to prove its case by the appropriate standard, the case is
reversed and dismissed.  If the evidence was sufficient, the
appellate court considers other assignments of trial error.  If it
was insufficient, the case is reversed and dismissed and there is
no need to consider the other arguments.  This is the reason an
appellate court routinely first considers sufficiency of the
evidence.  Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984).
     Affirmed in part; reversed and remanded in part.