## Facts

- Peter Joseph Constancio was charged based on a May 1977 incident and was not apprehended and arraigned for nearly a year.
- A Nevada jury convicted him of rape (former NRS 200.363) and two counts of the “infamous crime against nature” (NRS 201.190), and acquitted him of first-degree kidnapping (NRS 200.310).
- Before trial and on appeal, Constancio challenged the delay in apprehension and a claimed failure to bring him to trial within 60 days.
- At trial, over objection, Constancio’s former wife testified that during their marriage he frequently experienced erectile dysfunction or difficulty completing intercourse.
- Constancio argued the then-existing rape statute was unconstitutional because it protected only female victims.
- He also challenged an evidentiary matter involving a medical journal article not included in the appellate record and argued the court abused its discretion by imposing consecutive sentences.

## Issues

1. Whether the nearly one-year pre-arrest delay violated due process absent a showing of actual prejudice.
2. Whether a 60-day speedy-trial dismissal claim could be reconsidered on direct appeal after prior habeas proceedings rejected it.
3. Whether a gender-specific rape statute protecting only females violated the Equal Protection Clause.
4. Whether testimony by a former spouse about observed sexual functioning during marriage was barred by the marital communications privilege.
5. Whether alleged evidentiary error and the imposition of consecutive sentences required reversal.

## Decision

- The Nevada Supreme Court affirmed the judgment of conviction.
- The court held the pre-arrest delay did not violate due process because the record did not show actual prejudice from the delay.
- The court declined to revisit the 60-day speedy-trial claim because it had already been considered and rejected in prior habeas proceedings.
- The court rejected the equal protection challenge and upheld the female-only rape statute.
- The court held the former wife’s testimony was not a privileged “confidential communication” because it concerned observed physical conduct rather than communicative acts intended to convey a message.
- The court found no reversible evidentiary error where the challenged article was not included in the appellate record and upheld consecutive sentences as within the trial court’s discretion.

## Legal Principles

- Pre-accusation delay violates due process only upon a showing of actual prejudice; delay alone is insufficient.
- Issues decided in prior appellate habeas proceedings will not be reconsidered on direct appeal absent a basis to depart from that prior determination.
- A gender-based sexual offense classification does not violate equal protection where the legislature may treat sexes differently based on material differences and important governmental objectives.
- The marital communications privilege protects confidential communications (expressions intended to convey a message), not merely observed physical conduct within marriage; former spouses may testify to non-communicative observations.
- An appellant must provide an adequate appellate record demonstrating error; absent the challenged material, an appellate court will not presume error.
- Sentences within statutory limits, including consecutive sentences, are reviewed for abuse of discretion and are upheld absent reliance on improper considerations or other clear error.

## Conclusion

The Nevada Supreme Court affirmed Constancio’s convictions and consecutive sentences, holding that he failed to show prejudice from pre-arrest delay, could not relitigate a previously rejected 60-day claim, and did not establish equal protection, marital privilege, evidentiary, or sentencing error warranting reversal.


Constancio v. State, 639 P.2d 547 (Nev. 1982)