People of Michigan v. Rita Johnson

STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
December 29, 2015
Plaintiff-Appellee,

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: JANSEN, P.J., and CAVANAGH and GLEICHER, JJ.

PER CURIAM.

In Docket No. 322432, defendant Rita Johnson (“Johnson”) appeals as of right her bench
trial convictions of arson of an insured dwelling, MCL 750.76(1)(a), and second-degree arson,
MCL 750.73(1). Johnson was sentenced to 69 months to 20 years’ imprisonment for the arson of
an insured dwelling conviction and 69 months to 20 years’ imprisonment 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, MCL 750.76(1)(a), and second-
degree arson, MCL 750.73(1). Floyd was sentenced to 4 years and 3 months to 20 years’
imprisonment for the arson of an insured dwelling conviction and 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 determination of the factual basis
for the court costs imposed on Floyd.

This matter arises out of two fires occurring at 9197 Devonshire, in Detroit, Michigan,
during the early morning hours of June 6, 2013. Johnson is Floyd’s mother. Floyd owned the

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home at 9197 Devonshire, and Johnson rented the home from Floyd. Johnson maintained rental
or personal property insurance on the contents of the home through Allstate Insurance Company
(“Allstate”). The effective date 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 testimony and evidence pertaining
to previous fires that led to insurance claims by Johnson and her 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 where there has been an abuse of discretion. However,
the decision frequently involves a preliminary question of law, such as whether a
rule of evidence or statute precludes the admission of the evidence. We review
questions of law de novo. Therefore, when such preliminary questions are at
issue, we will find an abuse of discretion when a trial court admits evidence that is
inadmissible as a matter of law. [Citations omitted.]

Specifically, we review a trial court’s decision to admit evidence 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 of reasonable and
principled outcomes.” Id.

MRE 404(b) provides, in part:

(1) Evidence of other crimes, wrongs, or acts is not admissible 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 motive, opportunity,
intent, preparation, scheme, plan, or system in doing an act, knowledge, identity,
or absence of mistake or accident when the same is material, whether such other
crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the
conduct at issue in the case.

To admit evidence of prior bad acts, the evidence must be offered for a proper purpose under
MRE 404(b), the proffered evidence must be relevant under MRE 402, and the probative value
of the evidence must not be substantially outweighed by the danger of unfair prejudice. People v
VanderVliet, 444 Mich 52, 74-75; 508 NW2d 114 (1993), amended 445 Mich 1205 (1994). The

1
Darryl, the brother of Floyd and son of Johnson, was a codefendant at trial. Darryl was found
guilty of second-degree arson.

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challenged evidence cannot be offered merely to show a defendant’s criminal propensity, but
rather, must be offered for a proper purpose, such as to demonstrate 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 probable 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 is greater than that needed to prove
intent, but less than that needed to prove identity.” Specifically:

To establish the existence of a common design or plan, the common 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 similar to the
charged offense may be relevant if these acts demonstrate circumstantially that
the defendant committed the charged offense pursuant to the same design or plan
he or she used in committing the uncharged acts. Unlike evidence of uncharged
acts used to prove identity, the plan need not be unusual or distinctive; 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 separate, previous fires and claims
for insurance by Johnson and Darryl demonstrate a common plan or scheme consistent with
admissibility pursuant to MRE 404(b). In the prior uncharged acts, 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 property in the dwellings
approximately one month before a fire occurred. In all three prior 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 origin. There was an odor of gasoline
detected at two of the previous fires and at the Devonshire property. In addition, at least two of
the properties were owned by Floyd or her sister, Dana Floyd, and rented to family members
before the fires occurred. Thus, there was evidence of a common scheme or plan to set fires in
order to submit claims on insured personal property. See MRE 404(b). Additionally, the
evidence was relevant because it was probative of intent, motive, plan, or design. See MRE 401.
Finally, the probative value of the evidence was not substantially outweighed by the danger of
unfair prejudice. The evidence regarding the prior fires was highly 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 bench 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, admission 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 submitted regarding the
earlier fires involving Darryl were admissible at trial since they also pertained to her. MRE

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404(b)(1) is applicable to the admissibility of evidence of other acts of any person. People v
Rockwell, 188 Mich App 405, 409-410; 470 NW2d 673 (1991). In this case, Darryl is Johnson’s
son and they, along with Floyd, were charged with conspiracy, MCL 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. Furthermore, as discussed above, the circumstances 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 court did not err in admitting the other
acts evidence related to Darryl.

Johnson further asserts the trial court erred in determining that 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 known as the “doctrine of objective
improbability”—is a “ ‘theory of logical relevance [that] does not depend on a
character inference.’ ” Under this theory, as the number of incidents of an out-of-
the-ordinary event increases in relation to a particular defendant, the objective
probability increases that the charged act and/or the prior occurrences were not
the result of natural causes. The doctrine is commonly discussed in cases
addressing MRE 404(b) because the doctrine describes a logical link, based on
objective probabilities, between evidence of past acts or incidents that may be
connected with a defendant and proper, 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 absence of mistake or
accident because it is objectively improbable that such events occur so often in
relation to the same person due to mere happenstance. [Citations omitted.]

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

The trial court did not err in considering the doctrine of chances with regard to the
admissibility of the prior fires in this case. “[T]he very function of the doctrine of chances is to
permit the introduction of events that might appear accidental in isolation, but 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 that 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 particularly relevant with regard to the issue of
intent. As noted by the Mardlin Court:

2
Johnson and Floyd were acquitted of conspiracy to commit arson of an insured dwelling, while
Darryl was acquitted of conspiracy to commit second-degree arson.

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 [P]recedent examining MRE 404(b) and the doctrine of chances clearly
establishes that unusually frequent events—and particularly purported
accidents—associated with the defendant and falling into the same general
category of incidents are admissible to disprove lack of accident or innocent intent
with regard to the charged event. Such evidence is particularly useful in arson
cases where unusually frequent individual fires, which could appear to be
accidents when viewed in isolation, may constitute the most probative objective
evidence that the defendant intentionally set the fire underlying the arson charge.
[Id. at 629.]

Thus, the fact that there were unusually frequent individual fires was probative, objective
evidence that Johnson intentionally set the fire in this case. See id. Therefore, Johnson’s
assertion of error regarding the admissibility of the challenged evidence is without merit.

II. SUFFICIENCY OF THE EVIDENCE

Next, Johnson asserts that there was insufficient evidence to support her convictions of
arson of an insured dwelling and second-degree arson. Specifically, 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 evidence establishing that she committed 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. This Court
resolves all conflicts regarding the evidence in favor of the prosecution, and
[c]ircumstantial evidence and reasonable 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 750.76, in relevant part, as
follows:

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

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

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

(1) Except as provided in [MCL 750.72], a person who willfully or
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, is guilty of second degree arson.

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 (2) Subsection (1) applies regardless of whether the person owns the
dwelling or its contents.

The Michigan Supreme Court explained the meaning of the phrase “willfully and maliciously” in
the context of discussing common-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 defendant intended to do
the physical act constituting the actus reus of arson, i.e., starting 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 of 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 identity as the perpetrator of a crime
may be proven through circumstantial 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 sustain her convictions for
these crimes is without merit. Proofs at trial included Johnson’s acknowledgement and evidence
that she maintained rental insurance 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 earlier theft and the fires,
exceeding the limits of the policy. Testimony was elicited from 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 the Detroit Fire Department,
indicated that he observed other responders in the basement and further refuted any suggestion
that the fire could have originated in that location. Similarly, Brian Rentz and Captain Mark
Kossarek testified that, while they did not personally inspect the basement of the home, protocol
required one of the responders 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 intentional setting. Testimony established
that the second fire was separate and independent from the stairway fire due to the absence of
any trail or indication to link the two events. Use of the thermal imaging camera following the
stairway fire further suggests that the two fires are unrelated. Testimony indicated 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 was ample evidence indicating that the
fires were set willfully and maliciously. 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 gasoline 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 the fires were incendiary or purposefully set due to human action.

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 In addition, there was ample evidence indicating that Johnson was involved in the arson.
One of Johnson’s neighbors saw Johnson’s vehicle outside of 9197 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 after, 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 intention by Johnson and Darryl to set a
fire at an indeterminate time. Thus, there was sufficient evidence to identify Johnson as a
perpetrator of the crime. Therefore, Johnson’s arguments regarding the sufficiency of the
evidence fail.

Johnson’s assertion that the cellular telephone records are exculpatory is unavailing.
While some of the cellular telephone records place her telephone at the drive-in movie theater for
a time, the same records demonstrate that her cellular telephone 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, neighbors testified to seeing Johnson 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 testimony were not credible is unavailing because, “[a]s [the] finder of
fact, the trial court was charged with making credibility determinations, and [there is] nothing in
the record to suggest that the court clearly erred in its findings.” 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 asserts her trial counsel was
ineffective for not obtaining an independent examination or persuading the trial court to secure
Floyd’s adherence to the order. We disagree.

In general, an issue must be raised, 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 attorney requested a competency
examination and that a competency examination was ordered. Two court-ordered examinations
were scheduled with the Center for Forensic Psychiatry. However, Floyd never appeared for the
scheduled competency examinations. The trial court withdrew the 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 review 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).

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 To preserve a claim asserting the ineffective assistance of counsel, a defendant must
move for a new trial or for a Ginther3 hearing. See People v Lopez, 305 Mich App 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 preserved for appellate review. See id.

“A claim of ineffective assistance of counsel presents a mixed question of law and fact.”
People v Brown, 294 Mich App 377, 387; 811 NW2d 531 (2011). “This Court reviews a trial
court’s findings of fact, if any, 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 reviewing court is left with a definite 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, [this 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 defendant’s competence is within 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 doubt” as to the
defendant’s competence. However, the decision as to the existence of a “bona
fide doubt” will only be reversed where there is an abuse of discretion. [Citation
omitted.]

“ ‘[T]he test for such a bona fide doubt is whether a reasonable 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 competency to stand trial.’ ” Id. (citation omitted; alteration in
original). “[T]he failure to observe procedures adequate to protect a defendant’s right not to be
tried or convicted while incompetent to stand trial deprives him 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 the rights of criminal
defendants to due process, Michigan has enacted MCL 330.2020(1), which provides:

A defendant to a criminal charge shall be presumed competent to 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 rational 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 perform in the
preparation of his defense 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 stand 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).

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 On a showing that the defendant may be incompetent to stand trial, the
court must order the defendant to undergo an examination by a certified or
licensed examiner of the center for forensic psychiatry or other facility officially
certified by the department of mental health to perform examinations 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 defendant fails to appear for the
examination as required or if commitment is necessary for the performance 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 retardation. 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 defendant, after being
notified, fails to appear for examination, the court may order detention at a
diagnostic facility for examination without hearing. This detention shall end upon
completion of the examination. [Emphasis added.]

During the January 31, 2014 pretrial hearing, defense counsel noted that Floyd failed to
appear for the competency examination. The court stated that the competency issue 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 the issue of Floyd’s competency
was waived. Floyd’s attorney responded to the trial court’s statement that the issue was waived
by stating, “Okay, thank you.”

Floyd fails to show that the trial 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, which 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 withdrawing 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 examinations. 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 failing 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.

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People v Mack, 265 Mich App 122, 129; 695 NW2d 342 (2005). “In order to obtain a new trial,
a defendant must show that (1) counsel’s performance fell below an objective standard of
reasonableness and (2) but for counsel’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 is an objective
one and requires the reviewing court to determine whether, in light of all the
circumstances, the identified acts or omissions were outside the wide range of
professionally competent assistance. This standard requires a reviewing court to
affirmatively entertain the range of possible reasons . . . counsel 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 demonstrate the existence of “ ‘ a
reasonable probability that, but for counsel’s unprofessional errors, 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 that counsel failed to encourage her
attendance and cooperation or that counsel could have physically compelled her participation. In
asserting that counsel was ineffective for failing to secure an independent competency
examination, Floyd effectively ignores the absence of evidence to suggest that she would have
been any more compliant for an independent examination than she was with regard to a court-
ordered 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 of $7,058.95 in restitution to
Allstate for costs incurred in investigating the fires and claims pertaining to these convictions.
We disagree.

We first note that Floyd has waived any issue regarding the amount 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 and unequivocal indications” of
approval at trial constitute waiver of a claim). In this case, Floyd’s attorney stated on the record
that there was no objection to the amount of the restitution. Thus, Floyd’s attorney made an
express and unequivocal indication that he approved of the restitution award. See id.
Regardless, even assuming that the issue was not waived and that Floyd merely forfeited the
issue, the trial court did not err in awarding $7,058.95 in restitution to Allstate. We review an
unpreserved issue regarding the trial 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

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physical, financial, or emotional harm as a result of the commission of a crime.” MCL
780.766(1). The definition of “victim” in this case also includes “[a] sole proprietorship,
partnership, corporation, association, 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 Court held that the trial court
did not clearly err in ordering the defendant to pay restitution to Blue Cross Blue Shield of
Michigan for the hours spent by an employee of the company investigating the defendant’s fraud
since Blue Cross suffered a “loss of time that amounted to a direct financial harm.”

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

[W]hen sentencing a defendant convicted of a crime, the court shall order, in
addition to or in lieu of any other penalty authorized by law or in addition to any
other penalty required by law, that the defendant make full restitution 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 restitution is notable and relevant, indicating the need for the parties to
stipulate to the amount for compensation. The amount awarded in this case conforms to the
mandate requiring the prosecution to assume the burden of establishing 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 victim. . . .’ ” Id. The lower court file
demonstrates the prosecution’s compliance with the statutory requirements, 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 losses arising from criminal
conduct—as much as practicable—from crime victims to the perpetrators 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 omitted). Because Floyd does not contest the amount of the restitution
award, or assert the absence of proofs to substantiate the amount awarded, she fails to assert a
meritorious claim of error.

To the extent that Floyd contends that her counsel was ineffective 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 documentation was provided to verify the
expenses incurred by Allstate due to the crimes charged, counsel 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 ineffective 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 stated in People v

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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 challenge to the trial court’s imposition of court costs by
objecting at the time that the trial court orders payment of court costs. See Konopka (On
Remand), 309 Mich App at 356. Because Floyd did not challenge the trial 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 court costs. The issue pertaining 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), which 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 the
defendant entered a plea of guilty or nolo contendere or the court determined that
the defendant was guilty.

(ii) Any cost authorized by the statute for a violation of which the
defendant entered a plea of guilty or nolo contendere or the court 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 those costs involved in
the particular case, including, but not limited to, the following:

(A) Salaries and benefits for relevant court personnel.

(B) Goods and services necessary for the operation of the court.

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

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

(v) Any assessment authorized by law.

(vi) Reimbursement under section 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 MCL 769.1k before June 18, 2014,
and after the effective date of the amendatory act. Konopka (On Remand), 309 Mich App at 357.
“The amended act was a curative measure to address the authority of courts to impose costs
under MCL 769.1k before Cunningham was issued.” Id. Based on the amended statutory

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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 trial court incurred because the trial
court did not state the factual basis for the court costs imposed See id. at 359-360. Therefore,
remand is necessary in order for the trial court to establish the factual basis for the court costs
imposed. See id.

We affirm defendants’ convictions and sentences, but remand the case in Docket No.
324610 for a determination of the factual basis for the court costs 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 rejected 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.

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