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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED December 29, 2015

v No. 322432 Wayne Circuit Court RITA JOHNSON, LC No. 13-007607-FC

Defendant-Appellant.

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 324610 Wayne Circuit Court OLIVIA FLOYD, LC No. 13-007607-FC

Defendant-Appellant.

Before: J ANSEN , P.J., and C AVANAGH and G LEICHER , JJ.

P ER C URIAM

. In Docket No. 322432, defendant Rita Johnson (“Johnson”) appea ls as of right her bench trial convictions of arson of a n insured dwel ling, MCL 750.76(1 )(a), and second-degree arson, MCL 750.73(1). Johnson was sente nced to 69 months to 20 years’ imprisonment for the arson of an insured dwelling conviction and 69 months to 20 years’ impri sonment for the second-degree arson conviction. In Docket No. 324610, defendant Olivia Floyd (“Floyd”) appeals as of right her bench trial convictions of arson of an insured dwelling, MC L 750.76(1)(a), and seconddegree arson, MCL 750.73(1). Floyd was sentenced to 4 years an d 3 months to 20 years’ imprisonment for the arson of a n insured dwelli ng conviction an d 4 years and 3 months to 20 years’ imprisonment for the second-degree arson conviction. We affirm defendants’ convictions and sentences, but remand the case in Docket No. 324610 for a d etermination of the factual basis for the court costs imposed on Floyd.

This matter arises out of two fires occurring at 9197 Devonshi re, in Detroit, Michigan, during the early morning hours of June 6, 2013. Johnson is Flo yd’s mother. Floyd owned the-2- home at 9197 Devonshire, and Johnson rented the home from Floyd . Johnson maintained rental or personal property insurance on the contents of the home thro ugh Allstate Insurance Company (“Allstate”). The effective da te of Johnson’s insurance policy for the property was May 2, 2013, and there was a $50,000 policy cap for each claim. The policy covered losses or damage resulting from a theft or fire.

I. MRE 404(b)

Johnson first contends the trial court erred in admitting test imony and evidence pertaining to previous fires that led to insurance claims by Johnson and h er son, Darryl Floyd. 1 We disagree.

As discussed by our Supreme Court in People v Katt , 468 Mich 272, 278; 662 NW2d 12 (2003):

The decision whether to admit evidence is within a trial court ’s discretion. This Court reverses it only whe re there has been an abuse of di scretion. However, the decision frequently involves a preliminary question of law, such as whether a rule of evidence or statute precl udes the admission of the evid ence. We review questions of law de novo. Therefore, when such preliminary que stions are at issue, we will find an abuse of di scretion when a trial court a dmits evidence that is inadmissible as a matter of law. [Citations omitted.]

Specifically, we review a trial court’s decision to admit evide nce under MRE 404(b) for an abuse of discretion. See People v Waclawski , 286 Mich App 634, 669-670; 780 NW2d 321 (2009). “A court abuses its discretion when it chooses an outcome that is outside the range o f reasonable and principled outcomes.” Id

. MRE 404(b) provides, in part:

(1) Evidence of other crimes, wrongs, or acts is not admissib le to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of mot ive, opportunity, intent, preparation, scheme, plan, or system in doing an act, k nowledge, identity, or absence of mistake or accident when the same is material, wh ether such other crimes, wrongs, or acts are contemporaneous with, or prior or s ubsequent to the conduct at issue in the case.

To admit evidence of prior bad acts, the evidence must be offer ed for a proper purpose under MRE 404(b), the proffered evidence must be relevant under MRE 4 02, and the probative value of the evidence must not be subs tantially outweighed by the dan ger of unfair prejudice. People v VanderVliet , 444 Mich 52, 74-75; 508 NW2d 114 (1993), amended 445 Mich 120 5 (1994). The

1 Darryl, the brother of Floyd and son of Johnson, was a codefen dant at trial. Darryl was found guilty of second-degree arson.-3- challenged evidence cannot be offered merely to show a defendan t’s criminal propensity, but rather, must be offered for a proper purpose, such as to demons trate that he or she had knowledge or acted with a common scheme or plan. See MRE 404(b ). “ ‘Relevance is a relationship between the evidence and a material fact at issue that must be demonstrated by reasonable inferences that make a material fact at issue more p robable or less probable than it would be without the evidence.’ ” People v Knox , 469 Mich 502, 509; 674 NW2d 366 (2004) (citation omitted). As discussed in People v Sabin (After Remand) , 463 Mich 43, 63, 65-66; 614 NW2d 888 (2000) (citation omitted), to prove the existence of a common plan between a charged act and an uncharged act, “the necessary degree of similarity i s greater than that needed to prove intent, but less than that neede d to prove identity.” Specific ally:

To establish the existence of acommon design or plan, the comm on features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual . . . . [E]vidence that the defendant has committed uncharged criminal acts that are si milar to the charged offense may be relevant if these acts demonstrate circu mstantially that the defendant committed the charged offense pursuant to the sam e design or plan he or she used in committing the uncharged acts. Unlike eviden ce of uncharged acts used to prove identity, the plan need not be unusual or di stinctive; it need only exist to support the inference that the defendant employed that plan in committing the charged offense. [ Id. at 65-66 (citation omitted).]

In this instance, the uncharged crimes involving three separat e, previous fires and claims for insurance by Johnson and Darryl demonstrate a common plan o r scheme consistent with admissibility pursuant to MRE 404(b). In the prior uncharged a cts, as well as the current situation, an insurance claim was submitted as the result of a fire. In two of the prior incidents, as well as in this case, insurance was procured for personal pr operty in the dwellings approximately one month before a fire occurred. In all three p rior instances, as well as in this case, there was a concurrent or immediately preceding theft in addition to the damages asserted from the fires. In each situation, the homes were not occupied at the time the fires originated. All of the fires were suggestive of arson or of a suspicious or igin. There was an odor of gasoline detected at two of the previous fires and at the Devonshire pro perty. In addition, at least two of the properties were owned by Floyd or her sister, Dana Floyd, a nd rented to family members before the fires occurred. Thus, there was evidence of a commo n scheme or plan to set fires in order to submit claims on insure d personal property. See MRE 4 04(b). Additionally, the evidence was relevant because it was probative of intent, motiv e, plan, or design. See MRE 401. Finally, the probative value of the evidence was not substantia lly outweighed by the danger of unfair prejudice. The evidence regarding the prior fires was h ighly relevant to the issue whether defendants committed arson in this case. See MRE 403; MRE 404( b). Additionally, the danger of unfair prejudice was minimal in light of the fact that there was a be nch trial. See People v Lanzo Constr Co , 272 Mich App 470, 484; 726 NW2d 746 (2006) (“In a bench trial , the trial court is presumed to know the applicable law.”). Thus, admissi on of the evidence was proper because the similarities between the prior fires and the fires in this case demonstrate a common plan, scheme, or system. See MRE 404(b).

Contrary to Johnson’s arguments, the prior bad acts evidence s ubmitted regarding the earlier fires involving Darryl were admissible at trial since t hey also pertained to her. MRE-4- 404(b)(1) is applicable to the ad missibility of evidence of oth er acts of any person. People v Rockwell , 188 Mich App 405, 409-410; 470 NW 2d 673 (1991). In this case , Darryl is Johnson’s son and they, along with Floyd, were charged with conspiracy, M CL 750.157a, in this matter. 2 The mere fact that Johnson, Floyd, and Darryl were found to be not guilty on the various conspiracy charges is irrelevant to the probative value of the evidence at the time the conspiracy charges were pending. Furthermor e, as discussed above, the cir cumstances surrounding the prior fires involving Darryl were similar to the circumstances surrounding the prior fire involving Johnson and the fires that occurred in this case. Thus, the co urt did not err in admitting the other acts evidence related to Darryl.

Johnson further asserts the trial court erred in determining t hat evidence pertaining to the prior fires was admissible in accordance with the “doctrine of chances.” As explained in People v Mardlin , 487 Mich 609, 616-617; 790 NW2d 607 (2010):

The doctrine of chances—also kn own as the “doctrine of objecti ve improbability”—is a “ ‘theory of logical relevance [that] does not depend on a character inference.’ ” Under this theory, as the number of in cidents of an out-ofthe-ordinary event increases in relation to a particular defend ant, the objective probability increases that the charged act and/or the prior occ urrences were not the result of natural causes. T he doctrine is commonly discuss ed in cases addressing MRE 404(b) because the doctrine describes a logical link, based on objective probabilities, between e vidence of past acts or incid ents that may be connected with a defendant and pr oper, noncharacter inferences that may be drawn from these events on the basis of their frequency. If a type of event linked to the defendant occurs with unusual frequency, evidence of the occurrences may be probative, for example, of his criminal intent or of the abs ence of mistake or accident because it is objectively improbable that such events occur so often in relation to the same person due t o mere happenstance. [Citatio ns omitted.]

Hence, “[t]he doctrine of chances is often similarly employed i n cases alleging arson to argue that the fire at issue was not an accident, but was intentional ly caused by the defendant. Indeed, arguably the doctrine is epitomized in arson cases in which app arently accidental fires befall property linked to the defenda nt with uncommon frequency.” Id. at 618-619.

The trial court did not err in considering the doctrine of cha nces with regard to the admissibility of the prior fires in this case. “[T]he very fun ction of the doctrine of chances is to permit the introduction of events that might appear accidental in isolation, bu t that suggest human design when viewed in aggregate.” Mardlin , 487 Mich at 625. Thus, the evidence was admissible in this case in order for the prosecution to argue t hat the fires were not the result of an accident because of the unusual frequency of the earlier fires of property linked to Johnson or Darryl. See id . at 618-619. The evidence was pa rticularly relevant with rega rd to the issue of intent. As noted by the Mardlin Court:

2 Johnson and Floyd were acquitted of conspiracy to commit arsonof an insured dwelling, while Darryl was acquitted of conspiracyto commit second-degree arso n.-5- [P]recedent examining MRE 404(b) and the doctrine of chances cl early establishes that unusually frequent events—and particularly purported accidents—associated with the defendant and falling into the sa me general category of incidents are admissible to disprove lack of accide nt or innocent intent with regard to the charged event. Such evidence is particularl y useful in arson cases where unusually frequent i ndividual fires, which could ap pear to be accidents when viewed in isolation, may constitute the most pro bative objective evidence that the defendant intentionally set the fire underlyi ng the arson charge. [ Id. at 629.]

Thus, the fact that there were unusually frequent individual fi res was probative, objective evidence that Johnson intentiona lly set the fire in this case. See id . Therefore, Johnson’s assertion of error regarding the a dmissibility of the challenge d evidence is without merit.

II. SUFFICIENCY O F THE EVIDENCE

Next, Johnson asserts that there was insufficient evidence to support her convictions of arson of an insured dwelling a nd second-degree arson. Specific ally, Johnson argues that there was a lack of evidence to support the conclusion that the house fires were the result of arson and that there was a lack of eviden ce establishing that she committ ed the offenses. We disagree.

As discussed by this Court in People v Lockett , 295 Mich App 165, 180; 814 NW2d 295 (2012):

This Court reviews de novo challenges to the sufficiency of the evidence to determine whether any rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt. T his Court resolves all conflicts regarding t he evidence in favor of the p rosecution, and [c]ircumstantial evidence and re asonable inferences drawn from it may be sufficient to prove the elements of the crime. [Citations and quotation marks omitted; alteration in original.]

The crime of arson of an insured dwelling is codified in MCL 7 50.76, in relevant part, as follows:

(1) A person who willfully or maliciously burns, damages, or d estroys by fire or explosive any of the following or the contents of any o f the following is guilty of arson of insured property:

(a) Any dwelling that is insured against loss from fire or exp losion if the person caused the fire or explosi on with the intent to defraud the insurer.

In turn, MCL 750.73 defines the crim e of second-degree arson as follows:

(1) Except as provided in [MCL 750.72], a person who willfullyor maliciously burns, damages, or destroys by fire or explosive a dwelling, regardless of whether it is occupied, unoccupied, or vacant at the time of the fire or explosion, or its contents, i s guilty of second degree arson

.-6- (2) Subsection (1) applies rega rdless of whether the person ow ns the dwelling or its contents.

The Michigan Supreme Court explai ned the meaning of the phrase “willfully and maliciously” in the context of discussing co mmon-law arson as follows:

To establish that a defendant acted wilfully or maliciously and voluntarily, the prosecution must prove one of the following: 1) that the defend ant intended to do the physical act constituting the actus reus of arson, i.e., st arting a fire or doing an act that results in the starting of a fire (intentional arson); or 2) that the defendant intentionally committed an act that created a very high risk of burning a dwelling house, and that, while committing the act, the defendant knew o f the risk and disregarded it (wanton arson). [ People v Nowack , 462 Mich 392, 406; 614 NW2d 78 (2000).]

Identity is an element of every offense, and a defendant’s iden tity as the perpetrator of a crime may be proven through circu mstantial evidence. See People v Yost , 278 Mich App 341, 356; 749 NW2d 753 (2008); People v Nelson , 234 Mich App 454, 459; 594 NW2d 114 (1999).

Johnson’s claim regarding the lack of sufficient evidence to s ustain her convictions for these crimes is without merit. P roofs at trial included Johnso n’s acknowledgement and evidence that she maintained rental insur ance for the personal property and contents of the Devonshire residence. Evidence was submitted to denote that Johnson filed a claim with the insurer to obtain reimbursement for damages incurred due to an alleged ear lier theft and the fires, exceeding the limits of the policy. Testimony was elicited fro m fire personnel and experts indicating that the stairway fire in the home was the result of arson given the odor of gasoline, the unusual burn pattern, and the absence of any mechanical or electrical explanation for the fire. Although the witnesses providing testimony regarding the events and response to the fire did not personally check the basement of the home, William Belser, of t he Detroit Fire Department, indicated that he ob served other responders in the basement and further refuted any suggestion that the fire could have originated in that location. Similarl y, Brian Rentz and Captain Mark Kossarek testified that, while t hey did not personally inspect the basement of the home, protocol required one of the responde rs to check the area.

Evidence pertaining to the second fire in the back bedroom of the home further indicated a lack of any explanation for its origin other than an intentio nal setting. Testimony established that the second fire was separate and independent from the stai rway fire due to the absence of any trail or indication to link the two events. Use of the the rmal imaging camera following the stairway fire further suggests that the two fires are unrelated . Testimony indicat ed that personal items, such as photographs, had been removed from the premises hours before the fires occurred, suggesting a “red flag” for fire investigators. Thus, there wa s ample evidence indicating that the fires were set willfully and ma liciously. Undisputed evidence was adduced proving the existence of insurance on the contents of Devonshire, and the occurrence of two fires at that location at separate and unrelated areas of the home within a short span of time. The destruction that occurred to the structure and its contents, the odor of gasolin e associated with the stairway fire, and the inability to locate an alternative explanation for the origin of the fires resulted in the investigators determining that t he fires were incendiary or pur posefully set due to human action.-7- In addition, there was ample evidence indicating that Johnson was involved in the arson. One of Johnson’s neighbors saw J ohnson’s vehicle outside of 919 7 Devonshire between the times of the two fires. Another neighbor witnessed Johnson and Darryl drive up to the home and park in the driveway. Darryl went toward the back of the house and Johnson went toward the front door. Johnson and Darryl started yelling. They returned to their vehicle and drove down the street. They parked in a driveway down the street. Soon a fter, the neighbor saw fire coming from the home and heard sirens. The vehicle left when the fire department arrived. Further, Floyd’s second statement to investigators indicated an intentio n by Johnson and Darryl to set a fire at an indeterminate time. Thus, there was sufficient evid ence to identify Johnson as a perpetrator of the crime. Therefore, Johnson’s arguments regar ding the sufficiency of the evidence fail.

Johnson’s assertion that the ce llular telephone records are ex culpatory is unavailing. While some of the cellular tele phone records plac e her telephon e at the drive-in movie theater for a time, the same records demonstrate that her cellular telephon e was positioned near the Devonshire address during the early morning hours on the day of the incident. Thus, the cellular telephone records do not preclude the possibility that Johnson was involved in the incident. In addition, as discussed above, neig hbors testified to seeing Joh nson and Darryl, as well as Johnson’s car, at the home between the times of the two fires. Johnson’s contention that the individuals providing the testim ony were not credible is unavai ling because, “[a]s [the] finder of fact, the trial court was charged with making credibility deter minations, and [there is] nothing in the record to suggest that the c ourt clearly erred in its findi ngs.” People v McCray , 245 Mich App 631, 640; 630 NW2d 633 (2001).

III. COMPETENCY EXAMINATION

Floyd first contends the trial court erred in not assuring the effectuation of its order for her submission to a competency examination. She further assert s her trial counsel was ineffective for not obtaining an independent examination or per suading the trial court to secure Floyd’s adherence to the order. We disagree.

In general, an issue must be rais ed, addressed, and decided by the trial court to properly preserve the issue for appellate review. People v Metamora Water Serv, Inc , 276 Mich App 376, 382; 741 NW2d 61 (2007). The record indicates that Floyd’s att orney requested a competency examination and that a competency examination was ordered. Two court-ordered examinations were scheduled with the Center for Forensic Psychiatry. Howeve r, Floyd never appeared for the scheduled competency examinations . The trial court withdrew th e order, and Floyd’s attorney did not object. Thus, the contention of error for the failure of the trial court to assure the effectuation of such an order is not preserved for appellate re view since Floyd’s attorney did not challenge the court’s decision in the trial court. Therefore, we review the issue for plain error affecting defendant’s substantial rights. People v Carines , 460 Mich 750, 761-767; 597 NW2d 130 (1999).-8- To preserve a claim asserting the ineffective assistance of co unsel, a defendant must move for a new trial or for a Ginther3 hearing. See People v Lopez , 305 Mich A pp 686, 693; 854 NW2d 205 (2014). Because Floyd did not seek a motion for a new trial or Ginther hearing, the issue is also not properly pres erved for appellate review. See id

.
“A claim of ineffective assistan ce of counsel presents a mixed question of law and fact.” People v Brown , 294 Mich App 377, 387; 811 NW2d 531 (2011). “This Court revi ews a trial court’s findings of fact, if a ny, for clear error, and reviews de novo the ultimate constitutional issue arising from an ineffective assistance of counsel claim.” Id . A finding is deemed to be clearly erroneous if “ ‘the revie wing court is left with a defi nite and firm conviction that a mistake has been made.’ ” Lopez , 305 Mich App at 693 (citation omitted). “ ‘Where claims of ineffective assistance of counsel have not been preserved, [thi s Court’s] review is limited to errors apparent on the record.’ ” Id . (citation omitted).

As discussed in People v Kammeraad , 307 Mich App 98, 138; 858 NW2d 490 (2014):

Although the determination of a d efendant’s competence is withi n the trial court’s discretion, a trial court has the duty of raising the issue of incompetence where facts are brought to its attention which raise a “bona fide dou bt” as to the defendant’s competence. However, the decision as to the existe nce of a “bona fide doubt” will only be reversed where there is an abuse of di scretion. [Citation omitted.]

“ ‘[T]he test for such a bona fid e doubt is whether a reasonabl e judge, situated as was the trial court judge whose failure to conduct an evidentiary hearing is being reviewed, should have experienced doubt with respect to co mpetency to stand trial.’ ” Id . (citation omitted; alteration in original). “[T]he failure to observe procedures adequate to pr otect a defendant’s right not to be tried or convicted while incompe tent to stand trial deprives hi m of his due process right to a fair trial.” Drope v Missouri , 420 US 162, 172; 95 S Ct 896; 43 L Ed 2d 103 (1975), citing Pate v Robinson , 383 US 375; 86 S Ct 836; 15 L Ed 2d 815 (1966). To protect t he rights of criminal defendants to due process, Mic higan has enacted MCL 330.2020(1) , which provides:

A defendant to a criminal charge shall be presumed competent t o stand trial. He shall be determined incompetent to stand trial only if he is incapable because of his mental condition of understanding the nature and object of the proceedings against him or of assisting in his defense in a rat ional manner. The court shall determine the capacity of a defendant to assist in his defense by his ability to perform the tasks reasonably necessary for him to pe rform in the preparation of his defens e and during his trial.

“The issue of incompetence to stand trial may be raised by the defense, court, or prosecution.” MCL 330.2024. “A defendant who is determined incompetent to st and trial shall not be proceeded against while he is incompetent.” MCL 330.2022(1).

3 People v Ginther , 390 Mich 436; 212 NW2d 922 (1973).-9- On a showing that the defendant may be incompetent to stand tr ial, the court must order the defendant to undergo an examination by a c ertified or licensed examiner of the center for forensic psychiatry or othe r facility officially certified by the department of mental health to perform examina tions relating to the issue of competence to stand trial. [MCR 6.125(C)(1); see also MCL 330.2026(1).]

MCR 6.125(C)(2) explains that “[t]he defendant must appear for the examination as required by the court.” (Emphasis added.) MCR 6.125(C)(4) provides that “ [t]he court may order commitment to a diagnostic facility for examination if the defe ndant fails to appear for the examination as required or if commitment is necessary for the p erformance of the examination.” (Emphasis added.)

During a December 13, 2013 pretrial hearing, Floyd’s attorney requested a competency examination on the basis that Floyd suffered from mental retard ation. The court referred Floyd for a competency examination. The corresponding order provided, in part:

If the defendant is on bond, s/he shall appear for examination at the places and times established by the examining facility. If the defend ant, after being notified, fails to appear for examination, the court may order detention at a diagnostic facility for examina tion without hearing. This dete ntion shall end upon completion of the examination. [Emphasis added.]

During the January 31, 2014 pret rial hearing, defense counsel noted that Floyd failed to appear for the competency examin ation. The court stated that t he competency issu e was required to be addressed within two weeks of the calendar conference in accordance with the pretrial order, and defense counsel agreed. The court determined that t he issue of Floyd’s competency was waived. Floyd’s attorney r esponded to the trial court’s st atement that the issue was waived by stating, “Okay, thank you.”

Floyd fails to show that the tr ial court erred in ruling that the issue of her competency to stand trial was waived. The trial court found that there was a bona fide doubt regarding whether Floyd was incompetent to stand trial. See Kammeraad , 307 Mich App at 138. The court properly ordered Floyd to undergo a psychiatric examination, wh ich is required by statute and court rule. MCL 330.2026(1); MCR 6.125(C)(1). The burden was then on Floyd to appear for the examination as required by the court. See MCL 330.2026(1); MCR 6.125(C)(2). When Floyd failed to appear, the court had the discretion to commit Floyd to a diagnostic facility, but was not required to do so. See MCR 6.125(C)(4); MCL 330.2026(1 ). Floyd fails to show that the trial court erred by withdraw ing the order for a competency evaluation. Instead, the trial court properly exercised its discretion in declining to commit Floyd to a diagnostic facility for examination after Floyd failed to appear for two scheduled exam inations. See MCL 330.2026(1); MCR 6.125(C)(4). Accordingly, Floyd fails to show plain error. See Carines , 460 Mich at 763.

Floyd further contends her trial counsel was ineffective for f ailing to assure the effectuation of the trial court’s order to undergo a competency examination or for failing to secure an independent examination for Floyd. Effective assistance of counsel is presumed.-10- People v Mack , 265 Mich App 122, 129; 695 NW2d 342 (2005). “In order to obt ain a new trial, a defendant must show that (1) counsel’s performance fell below an objective standard of reasonableness and (2) but for c ounsel’s deficient performance, there is a reasonable probability that the outcome would have been different.” People v Trakhtenberg , 493 Mich 38, 51; 826 NW2d 136 (2012).

The inquiry into whether counsel’s performance was reasonable i s an objective one and requires the reviewing court to determine whether, in l ight of all the circumstances, the identified acts or omissions were outside th e wide range of professionally competent assistance. This standard requires a reviewing court to affirmatively entertain the ra nge of possible reasons . . . cou nsel may have had for proceeding as they did. [ People v Vaughn , 491 Mich 642, 670; 821 NW2d 288, 306 (2012) (citations and quotation marks omitted).]

In order to demonstrate prejudice a defendant is required to de monstrate the existence of “ ‘ a reasonable probability that, but for counsel’s unprofessional e rrors, the result of the proceeding would have been different.’ ” Id. at 671 (citation omitted).

Counsel was able to secure a competency examination for Floyd. Floyd failed to appear or participate, despite rescheduling. Floyd does not assert th at counsel failed to encourage her attendance and cooperation or tha t counsel could have physicall y compelled her participation. In asserting that counsel was ineffective for failing to secure an independent competency examination, Floyd effectively i gnores the absen ce of evidence to suggest that she would have been any more compliant for an independent examination than she was with regard to a courtordered examination. Defense counsel is not required to make a meritless objection or request. See People v Chelmicki , 305 Mich App 58, 69; 850 NW2d 612 (2014).

V. COURT COSTS AND RESTITUTION

Floyd next argues that the court erred in entering the award o f $7,058.95 in restitution to Allstate for costs incurred in investigating the fires and clai ms pertaining to these convictions. We disagree.

We first note that Floyd has waived any issue regarding the am ount of restitution awarded premised on her attorney’s affirmative approval. See People v Kowalski , 489 Mich 488, 504-505; 803 NW2d 200 (2011) (recognizing that “express an d unequivocal indications” of approval at trial constitute waiver of a claim). In this case, Floyd’s attorney sta ted on the record that there was no objection to the amount of the restitution. Thus, Floyd’s attorney made an express and unequivocal indicatio n that he approved of the rest itution award. See id

. Regardless, even assuming that the issue was not waived and tha t Floyd merely forfeited the issue, the trial court did not err in awarding $7,058.95 in res titution to Allstate. We review an unpreserved issue regarding the tr ial court’s restitution award for plain error affecting defendant’s substantial rights. People v Gaines , 306 Mich App 289, 322; 856 NW2d 222 (2014).

As recognized by this Court in People v Fawaz , 299 Mich App 55, 64; 829 NW2d 259 (2012), “The [Crime Victim’s Rights Act (CVRA), MCL 780.751 et seq. ] governs restitution to crime victims.” The CVRA defines a “victim” as “an individual who suffers direct or threatened-11- physical, financial, or emotional harm as a result of the commi ssion of a crime.” MCL 780.766(1). The definition of “victim” in this case also inclu des “[a] sole proprietorship, partnership, corporation, associ ation, governmental entity, or any other legal entity that suffers direct physical or financial harm as a result of a crime.” MCL 780.766(1). In People v Allen
, 295 Mich App 277, 278-279, 282-283; 813 NW2d 806 (2011), this C ourt held that the trial court did not clearly err in ordering the defendant to pay restitutio n to Blue Cross Blue Shield of Michigan for the hours spent by an employee of the company inve stigating the defendant’s fraud since Blue Cross suffered a “loss of time that amounted to a di rect financial harm.”

Similarly, in this case, Allstate was a victim under the defin ition in MCL 760.766(1) because it suffered a loss of time amounting to direct financia l harm when it investigated the fires. See MCL 780.766(1). Notably, in accordance with the CV RA, restitution is mandatory and not discretionary. Specifically:

[W]hen sentencing a defendant convicted of a crime, the court shallorder, in addition to or in lieu of any other penalty authorized by law o r in addition to any other penalty required by law, that the defendant make full res titution to any victim of the defendant’s course of conduct that gives rise to the conviction or to the victim’s estate. [MCL 780.766(2) (emphasis added).]

There is no demonstrated error pertaining to the amount of the award. The trial court’s initial reluctance to award res titution is notable and relevant , indicating the need f or the parties to stipulate to the amount for compensation. The amount awarded i n this case conforms to the mandate requiring the prosecution to assume the burden of estab lishing the proper amount for a restitution award. See Fawaz , 299 Mich App at 65. “ ‘The amount of restitution to be paid by a defendant must be based on the actual loss suffered by the vict im. . . .’ ” Id . The lower court file demonstrates the prosecution’s compliance with the statutory re quirements, based on the submission of a motion and documents to support the award. “[W ]ith the Victims Right’s [sic] Act, the Legislature plainly intended to shift the burden of lo sses arising from criminal conduct—as much as practicable—from crime victims to the perpet rators of the crimes; thus, it is ‘remedial in character and should be liberally construed to effectuate its intent.’ ” Allen , 295 Mich App at 282 (citation om itted). Because Floyd does not con test the amount of the restitution award, or assert the absence of p roofs to substantiate the amou nt awarded, she fails to assert a meritorious claim of error.

To the extent that Floyd contends that her counsel was ineffec tive for stipulating to the award of restitution, such a claim is without merit. Based on a determination that restitution was appropriate in the circumstances of this case and that document ation was provided to verify the expenses incurred by Allstate due to the crimes charged, counse l cannot be deemed ineffective for failing to object based on futility. “Failing to advance a meritless argument or raise a futile objection does not constitute i neffective assistance of counsel .” People v Ericksen , 288 Mich App 192, 201; 793 NW2d 120 (2010).

VI. COURT COSTS

Floyd next challenges the trial court’s award of court costs, citing to People v Cunningham , 496 Mich 145; 852 NW2d 118 (2014), superseded by statute as s tated in People v-12- Konopka (On Remand) , 309 Mich App 345; 869 NW2d 651 (2015). We disagree that the trial court erred in imposing the court costs, but remand the case to the trial court for a determination of the factual basis for the court costs imposed on Floyd.

A defendant preserves a challe nge to the trial court’s imposit ion of court costs by objecting at the time that the trial court orders payment of co urt costs. See Konopka (On Remand) , 309 Mich App at 356. Because Floyd did not challenge the tri al court’s imposition of court costs before the trial court, this issue is not preserved , and our review is limited to plain error affecting Floyd’s substantial rights. See id

. Floyd contends, in accordance with Cunningham , that the trial court lacked the authorization to assess $600 in c ourt costs. The issue pertain ing to the award of court costs was raised before this Court issued its decision in Konopka , and after the effective date of the amendment of MCL 769.1k(1), whic h provides, in relevant part:

(b) The court may impose any or all of the following:

( i ) Any fine authorized by the statute for a violation of which t he defendant entered a plea of guilty or nolo contendere or the co urt determined that the defendant was guilty.

( ii ) Any cost authorized by the stat ute for a violation of which t he defendant entered a plea of guilty or nolo contendere or the co urt determined that the defendant was guilty.

( iii ) Until 36 months after the date the amendatory act that added subsection (7) is enacted into law, any cost reasonably related to the actual costs incurred by the trial court without separately calculating thos e costs involved in the particular case, including, but not limited to, the followi ng:
(A) Salaries and benefits for relevant cour t personnel.

(B) Goods and services necessa ry for the operation of the cour t.

(C) Necessary expenses for the operation and maintenance of co urt buildings and facilities.

( iv ) The expenses of providing leg al assistance to the defendant.

( v ) Any assessment authorized by law.

( vi ) Reimbursement under sec tion 1f of this chapter.

As recognized by this Court, the amended version of the statute became effective on October 17, 2014, and applies to all fines, costs, and assessments under MC L 769.1k before June 18, 2014, and after the effective date of the amendatory act. Konopka (On Remand) , 309 Mich A pp at 357. “The amended act was a curative measure to address the authorit y of courts to impose costs under MCL 769.1k before Cunningham was issued.” Id

. Based on the amended statutory-13- provisions, MCL 769.1k(1)(b)( iii ) allows for an award of costs that “are not independently authorized by the statute for the sentencing offense.” Id. Thus, the trial court had the authority to impose court costs under the amended statute since Floyd was sentenced before June 18, 2014. See id . at 359. 4 However, it is unclear from the lower court record whether the court costs imposed were reasonably related to the actual costs that the tr ial court incurred because the trial court did not state the factual basis for the court costs impos ed See id . at 359-360. Therefore, remand is necessary in order for the trial court to establish t he factual basis for the court costs imposed. See id

. We affirm defendants’ convictions and sentences, but remand th e case in Docket No. 324610 for a determination of the factual basis for the court c osts imposed on Floyd. We do not retain jurisdiction.

/s/ Kathleen Jansen /s/ Mark J. Cavanagh /s/ Elizabeth L. Gleicher

4 Floyd also argues that MCL 769.1k(1)(b)( iii ) violates the Ex Post Facto Clauses of the United States and Michigan Constitutions. However, this Court rejecte d the argument that MCL 769.1k(1)(b)( iii ) constitutes an ex post facto punishment in Konopka

. Konopka (On Remand)
, 309 Mich App at 370-376.