                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                      UNPUBLISHED
                                                                      December 22, 2016
               Plaintiff-Appellee,

v                                                                     No. 328570
                                                                      St. Clair Circuit Court
BRADLEY GRANT ZDRAL,                                                  LC No. 15-000441-FH

               Defendant-Appellant.


Before: SAAD, P.J., and METER and MURRAY, JJ.

PER CURIAM.

       A jury convicted defendant of operating a motor vehicle while intoxicated, causing
serious injury, MCL 257.625(5), for which the trial court sentenced him as a fourth-offense
habitual offender, MCL 769.12, to 3 to 15 years’ imprisonment. Defendant appeals, and for the
reasons provided below, we affirm.

        Defendant was convicted of operating a motor vehicle while intoxicated, causing serious
injury to his passenger, Shelley Silk, on July 26, 2014. An expert in accident reconstruction
opined that, given the circumstances surrounding the accident, operator error and alcohol use
precipitated the accident.         The accident reconstruction investigation revealed that at
approximately 6:40 p.m. on July 26, the Pontiac Aztec defendant and Silk were in was traveling
in Kenockee Township on Lapeer Rd., slid sideways off the road into a grass ditch, hit a
driveway embankment, flipped, and continued rolling until it stopped on a second driveway
embankment. Silk, who was ejected from the vehicle, suffered life-threatening injuries,
including a traumatic head injury, rib and spinal fractures, and lacerated internal organs.
Defendant initially told emergency personnel at the accident scene and a deputy at the hospital
that he was driving at the time of the accident. Silk testified at trial that defendant was the driver
and that she was asleep in the passenger seat. Photographs on defendant’s cell phone, taken
mere minutes before the accident, showed Silk asleep in the passenger seat. The defense theory
at trial was that he was not driving the vehicle when it crashed. Defendant testified that
approximately one mile before the accident scene, he and Silk had stopped and switched places,
resulting in Silk driving at the time of the accident.

       On appeal, defendant argues that he is entitled to a new trial because the trial court
allowed prosecution witness Colleen Bugg to testify that defendant’s mother tried to influence
witness testimony and to mention that defendant had previously been to prison. Defendant also

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contends that the prosecutor engaged in misconduct by eliciting the inadmissible evidence that
he had been to prison.

        Contrary to defendant’s assertion, his claims are not preserved. Defendant interjected an
unspecified objection immediately after Bugg mentioned that defendant had been to prison.
Although the basis for his objection to the prison reference is apparent, defendant did not ask the
court to rule on his objection, to strike the testimony from the record, or to issue a curative
instruction. Defendant also failed to timely object to Bugg’s testimony that defendant’s mother
had asked her to tell Silk’s mother to say that Silk was driving. Therefore, defendant’s
evidentiary claims are unpreserved. We review defendant’s unpreserved evidentiary claims for
plain error affecting defendant’s substantial rights. People v Carines, 460 Mich 750, 763-764;
597 NW2d 130 (1999). Defendant also did not argue at the trial court that the prosecutor
engaged in misconduct by eliciting the testimony that he had been to prison, so his prosecutorial
misconduct claim also is unpreserved. For this unpreserved argument, we again review for plain
error affecting substantial rights and therefore “will not reverse a defendant’s conviction[] if a
curative instruction could have cured any prejudice.” People v Ackerman, 257 Mich App 434,
449; 669 NW2d 818 (2003).

                      I. COLLEEN BUGG’S REBUTTAL TESTIMONY

        During trial, defendant’s mother, Marlene Zdral, was called by the defense. She testified
that she observed Silk driving on occasions, that defendant rides in the passenger seat with the
seat completely reclined, and that, after the accident, she took a photograph showing the position
of the reclined passenger seat. During cross-examination, Marlene testified that she had not
talked to Silk since the accident because Silk’s mother, Nancy, would not allow anyone to speak
to her. Marlene said she called Nancy because she was concerned about Silk’s condition. The
prosecutor then asked Marlene if she had called Bugg and asked her to tell Silk to say that
defendant was not driving, but Marlene denied having done so. After the defense rested, the
prosecutor called Bugg as a rebuttal witness. The following exchange occurred:

                Q. All right. Did you receive any phone calls while you were with Ms.
       Silk at the hospital, at Hurley there?

               A. Yes, I did, from [defendant’s] mom.

                                                  * * *

              Q. All right. And then did she ask you anything about the crash or talk to
       you about the crash at all?

               A. She asked me if I had found Shelley, is she okay.

              Q. Was there anything to do with who was driving involved there [sic]
       that conversation?

               A. Well, in three different phone calls she had begged me to, did you get a
       hold of Nancy, can you please tell them that Shelley was driving, I can’t take it my
       son going to prison again.

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               [Defense counsel]: Objection your Honor.

             Q. Well in regards to, to that particular conversation, right, you don’t
       know anything about the situations, right?

               A. No.

             [The prosecutor]: Other than what she said. I have nothing further, your
       Honor. [Emphasis added.]



                                  II. TRIAL COURT ERROR

        “Admission of rebuttal evidence is within the sound discretion of the trial judge and will
not be disturbed absent a clear abuse of discretion.” People v Figgures, 451 Mich 390, 398; 547
NW2d 673 (1996). “Rebuttal evidence is admissible to contradict, repel, explain or disprove
evidence produced by the other party and tending directly to weaken or impeach the same.” Id.
at 399 (quotation marks and citation omitted). As stated by our Supreme Court:

       [T]he test of whether rebuttal evidence was properly admitted is not whether the
       evidence could have been offered in the prosecutor’s case in chief, but, rather,
       whether the evidence is properly responsive to evidence introduced or a theory
       developed by the defendant. As long as evidence is responsive to material
       presented by the defense, it is properly classified as rebuttal, even if it overlaps
       evidence admitted in the prosecutor’s case in chief. [Id. (citations omitted).]

        Although Bugg’s testimony that Marlene asked her to tell Nancy that Silk was driving
directly contradicted Marlene’s testimony, the rebuttal testimony was improper because it did not
contradict evidence developed or presented by the defense. Rather, Bugg’s testimony was
responsive to evidence introduced by the prosecution during its cross-examination of Marlene.
Cf. id. at 400 (stating that rebuttal evidence was properly admitted because the evidence
“responded to evidence and impressions raised by defendant during direct examination”)
(emphasis added). Thus, assuming that the admission of the rebuttal evidence was plain error, in
order to be entitled to any relief, defendant must also establish that his substantial rights were
affected (i.e., that the error was outcome determinative). Carines, 460 Mich at 763-764.
Defendant bears the burden of showing actual prejudice, People v Pipes, 475 Mich 267, 274; 715
NW2d 290 (2006), and reversal is only warranted if the error resulted in the conviction of an
actually innocent defendant or if the error seriously affected the fairness, integrity, or public
reputation of judicial proceedings, independent of the defendant’s innocence. Carines, 460 Mich
at 763-764.

       There is no reasonable likelihood that but for Bugg’s rebuttal testimony, the jury would
have found defendant not guilty. As defendant states in his brief, “the only issue in contention in
the case was who was driving.” The substance of the rebuttal testimony was that defendant’s
mother asked Bugg to tell Silk’s mother that Silk was driving. This evidence was of
comparatively minor importance considering the totality of the admissible evidence against
defendant. Importantly, the first deputy and first paramedic to arrive on the scene both testified

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that Silk was found by the passenger side of the vehicle and defendant was found on the opposite
side—the driver’s side—of the vehicle. Further, defendant initially told an emergency medical
technician at the accident scene that he was the one who was driving. He also told the deputy
who questioned him at the hospital that he was the driver. In addition, an expert in trauma
surgical critical care medicine explained that Silk’s severe injuries were on her right side, which
was not consistent with impact caused by a steering wheel. Finally, Silk testified that she was
not driving, but was asleep in the passenger seat. Photographs on defendant’s cell phone, taken
just minutes before the accident, corroborated Silk’s testimony, as they showed her asleep in the
reclined passenger seat. Given the strength of the untainted evidence, it is dubious that Bugg’s
rebuttal testimony affected the outcome of the case. Accordingly, defendant is not entitled to
any relief, as he has not established that any error affected his substantial rights.

        Regarding the portion of Bugg’s testimony where she referenced defendant having
previously been to prison, the prosecutor concedes, and we agree, that the prison reference was
not admissible. See MRE 404(b). Again, assuming that the error was plain, defendant has not
established the necessary grounds for reversal. The reference was brief and isolated and did not
suggest any details about defendant’s criminal history; and the subject of his criminal record was
not pursued any further. Moreover, given the evidence of defendant’s guilt, as discussed
previously, this isolated reference was of little consequence and did not affect the outcome of the
proceedings. Accordingly, the error did not affect defendant’s substantial rights, and he is not
entitled to a new trial.

                            III. THE PROSECUTOR’S CONDUCT

        Defendant additionally argues that the prosecutor engaged in misconduct for intentionally
eliciting the testimony that he had been to prison. However, a prosecutor’s good-faith effort to
admit evidence does not constitute misconduct. People v Dobek, 274 Mich App 58, 70; 732
NW2d 546 (2007). Contrary to defendant’s argument, the prosecutor’s question did not invite
the testimony that defendant had been to prison. Rather, the prosecutor asked Bugg if Marlene
had said anything to her relating to who was driving the car. Clearly, the prosecutor merely
desired to elicit Bugg’s testimony that Marlene wanted to influence Silk’s family to say that Silk
was driving at the time of the accident. Bugg volunteered the additional information of why
Marlene made the plea. The prosecutor did not seek to develop that testimony and did not
mention the objectionable testimony in her closing argument. Because the remark was
volunteered by Bugg, and nothing in the record suggests that the prosecutor knew or encouraged
her nonresponsive answer, defendant has not established prosecutorial misconduct. See People v
Hackney, 183 Mich App 516, 531; 455 NW2d 358 (1990). Moreover, a curative instruction
would have cured any prejudice that resulted from the reference to defendant being in prison
before. Thus, under our plain-error review, defendant has not established the necessary grounds
for reversal. See Ackerman, 257 Mich App at 449.




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Affirmed.



                  /s/ Henry William Saad
                  /s/ Patrick M. Meter
                  /s/ Christopher M. Murray




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