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STATE OF MICHIGAN 

COURT OF APPEALS 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellee, 

UNPUBLISHED 

December 22, 2016 

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