Dеfendants were charged with three counts of first-degree criminal sexual conduct, MCL 750.520b; MSA 28.788(2), one count of armed robbery, MCL 750.529; MSA 28.797, and one count of felony-firearm, MCL 750.227b; MSA 28.424(2). Following a joint jury trial, both defendants were acquitted of all CSC charges. Defendant Woodward was convicted of armed robbery and felony-firearm. Defendant Carter was convicted of the lesser included offense of larceny *545 from a person, MCL 750.357; MSA 28.589, and was acquitted of thе felony-firearm charge. Woodward was sentenced to consecutive prison terms of 2 years on the felony-firearm conviction and 8 to 15 years on the armed robbery conviction. Carter was sentenced to six years and eight months to ten years imprisonment. Defendants appeal as of right. The appeals were consolidated.
Complainant testified that shortly after midnight on August 29, 1981, she was abducted by the defendants and driven to the Eastern Market area of Detroit, where she was forced at gunpoint to engage in sexual intercourse, first with Woodward, then with Carter and then again with Woodward. According to complainant, Woodward thеn took $9 and a vial of prescription medicine from her.
Woodward testified that the complainant had asked him to help her inject drugs into her groin area, and that the intercourse had been consensual. Cаrter did not testify or produce any witnesses. A statement given by Carter to the police shortly after he was arrested was read into evidence.
We first address an issue raised by both defendants and find no abuse of discretion on the part of the trial judge in finding that the prosecutor had exercised due diligence in attempting to produce two police officers who, as conceded by all parties, were res gestae witnеsses. The two officers had walked up to the car while defendant Woodward was having sexual intercourse with the complainant on the back seat. The officer in charge of the case testified that, although she had made an investigation, she was unable to locate or identify the two officers.
We next address the issues raised only by defendant Woodward, none of which require reversal.
*546 One of the items allegedly taken from complainant was a vial containing prescription medicine. An empty vial matching the description of the one taken from complainant was seized from defendant Woodward at the time of his arrest. Wоodward moved to suppress evidence of the vial on the ground that the arrest and resulting seizure of the vial were unconstitutional.
At a hearing on the motion, testimony established that defendant Woodward was arrestеd without a warrant on August 29, 1981, by four officers at the apartment of Constance Brown, where Ms. Brown lived with her father, son, and boyfriend. Although Brown consented to the entry, she claimed that the consent was coerced. Brown аdmitted the officers and directed them to the bathroom where they opened the door and found Woodward in front of the sink with the vial beside him in plain view.
The prosecutor opposed the motion to supprеss on the ground that Woodward did not have standing to challenge the search and seizure. On this issue, Brown testified that while defendant Woodward did not live at her apartment, he did stay there sometimes, including four nights out of the month previous to his arrest.
The trial court ruled that Brown’s consent was coerced and that the entry was unlawful, but denied the motion to suppress on the ground that Woodward did not live at the apartment and therefore did not havе standing to challenge the search and seizure. The vial was admitted into evidence and complainant testified that it was the one which defendant had taken from her.
Standing to challenge a search and seizure does not depend on a person’s ownership interest or
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residence in the premises searched. Rather, a defendant has standing to challenge a search and seizure if he has a legitimate expеctation of privacy in the searched area.
Rakas v Illinois,
Upon an examination of the record, we find that defendant Woodward did not have a legitimate expectation of privacy in Brown’s apartment. Wоodward was merely a transient visitor on the premises. Although he had Brown’s permission to stay at the apartment, he only occasionally spent the night there. We cannot conclude that Woodward thought of Brown’s аpartment as a place of refuge from public scrutiny nor can we conclude that he had a legitimate expectation of privacy therein. We, therefore, affirm the trial court’s denial of the motion to suppress.
Defendant Woodward contends that the trial court should have granted his motion for separate trials because a statement that Carter had given to the police, which was admitted at trial, placed culpability for any armed robbery squarely on the shoulders of defendant Woodward. We disagree. Although defendant Woodward did move for separate trials, that motion was based on defendant Woоdward’s fear that he would be prejudiced if defendant Carter’s criminal record became known to the jury. This motion was denied and defendant Carter never took the stand, thus, the jury was never apprised of defendant Carter’s record. Since defendant Woodward never moved to sever on the basis that defendant Carter’s statement to the police would implicate him, we do not review this
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issue.
People v Kramer,
Defendant challenges the trial cоurt’s ruling precluding him from impeaching the complainant with evidence of her alleged history of drug use and psychiatric problems. The court excluded this evidence on grounds of relevancy and we find no abuse of disсretion in that decision. MRE 401, 403;
People v O’Brien,
Prior to trial the prosecutor moved to suppress evidence of all of complainant’s prior convictions. The trial court weighed the appropriate factors and exercised his discretion in admitting evidence of some of the convictions while excluding others. However, the court suppressed evidence of the complainant’s 1964 and 1965 convictions without exercising its discretion, presumably because these convictions fell outside the ten-year period provided in MRE 609(b).
Relying on
People v Redmon,
Defendant raises as error two instances of noncompliance by the prosecutor with a continuing discovery order.
People v Pace,
We find that in the first instance, involving a statement by John Wayne, there was no violation *549 of the discovery order. Mr. Wayne was not endorsed until shortly before trial and, at that time, defense counsel was allowed to see Wayne’s "statement”, which consisted of sоme notes taken by a police officer during a telephone conversation with Wayne. In addition, eight days before trial, defense counsel discussed Wayne’s testimony with the officer in charge.
The second instаnce involves the inadvertent failure of the prosecutor to provide defendant with a copy of the second side of a preliminary complaint report. The missing side contained information regarding seizure of the vial. Although defendant claims that the information on the second page raised an issue about improper seizure of the vial, we find no reversible error for two reasons. First, the first page of the report did not end in a complete sentence. This should have alerted defense counsel that something was missing. Second, and more important, the trial court, sua sponte, held a hearing mid-trial on the legality of the seizure of the vial.
Last, we find that the trial court’s original denial of defendant Woodward’s alibi defense was not erroneous since defendant failed to timely file his notice of alibi as required by MCL 768.20; MSA 28.1043. Further, once defendant adequately еxplained the delay in filing, the trial court allowed defendant to present his alibi defense.
People v
Bennett,
We now turn to the issues raised only by defendant Carter.
Defendant Carter argues that since the armed robbery charge against him was based on an aiding and abetting theory, the jury cоuld not properly convict him of a lesser included offense while
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convicting Woodward of the charged offense. This argument lacks merit. The jury has legitimate power to render logically inconsistent verdicts.
People v Vaughn,
Defеndant Carter also argues that the court’s instruction to "consider the guilt or innocence of each defendant on each charge individually as if they were on trial alone” effectively coerced thе jury into returning an inconsistent verdict. Defendant’s failure to object to the instruction precludes appellate review absent manifest injustice, which is not present here.
People v Anglin,
Defendant Carter next asserts that the sentencing judge improperly considered trial testimony concerning criminal acts of which the defendant was not convicted. Specifically, defendant points to the following statements made by the court at sentencing:
"The complainant in this case was, in essence, kidnapped from the streets by Mr. Woodward and yourself and then certain aсts were performed upon her. And, she was clearly humiliated and degraded, mostly by Mr. Woodward, to a lesser extent by you. But, you helped in the whole process.”
A trial judge has wide discretion in imposing a sentence, and mаy consider other criminal activity for which no conviction resulted, provided the defendant is given an opportunity for refutation as found in GCR 1963, 785.12.
People v Andre Alexander,
Defendant Carter also asserts that the judge abused his discretion in imposing the maximum sentence allowed by statute. Michigan appellate courts, however, do not review the exercise of a trial court’s sentencing discretion where the sentence imposed is within statutory limits.
People v Burton,
Both convictions are affirmed. Defendant Carter’s sentence is set aside and his case is remanded to the trial court for resentencing.