dissenting.
In this death of a two-year-old child case, believing that the State failed to establish “(1) a pattern of violent behavior towards the child or exclusive control, (2) a pattern of non-accidental injuries, and (3) probability of death from such injuries,” ante p. 7, I dissent.
First, and summarily, I find the evidence of “causation” close, but insufficient to take the case to the jury. The majority relies *37on State v. Earnhardt, 307 N.C. 62, 296 S.E. 2d 649 (1982), State v. Wilkerson, 295 N.C. 559, 247 S.E. 2d 905 (1978), and State v. Lane, 39 N.C. App. 33, 249 S.E. 2d 449 (1978); however, I find those cases inapposite.
My second, and more substantial, reservation about the majority’s result involves what I believe to be a flawed premise by the majority — “The evidence showed that defendant had observed the victim through the previous night and had exclusive custody of the victim during the five-hour period following her last appearance as a healthy child, . . . [and that] the state’s evidence showed a fatal combination of recent injuries administered while the victim was in defendant’s custody, including exclusive custody in the five hours before death.” Ante pp. 4-5. Assuming, arguendo, that the child was seen by State’s witness Edel Elsayed on 10 August 1983,1 five hours before her death, *38Elsayed’s testimony does not aid the State measurably. Even conceding the majority’s point that “[t]he child had been seen beforehand by [Elsayed] who was familiar with her and who testified that she looked fine and was walking normally,” ante p. 5, Elsayed, himself, testified that the child was clothed when he saw her and was holding the defendant’s hand as she walked. An excerpt from the actual direct examination of Elsayed follows:
Q. Can you describe the appearance of the little girl that morning, what did she look like?
A. She’s fine, she walk with her hand, you know.
Q. Excuse me?
A. She catch his hand, she walk with him.
Q. Speak louder so we can hear you.
A. She walk, she was walk [sic] with him, you know.
Q. And, held someone’s hand?
A. Yeah.
Q. Whose hand was she holding?
A. Betty.
*39Q. This lady over here (indicating)?
A. Uh huh.
Q. Betty Evans?
A. Uh huh.
Q. How was the little girl acting?
A. Okay, she catch her hand and she walk with her, that’s it.
Q. Did she have any injuries?
A. What you mean injuries?
Mr. Willey: Objection.
Court: Over-ruled.
Q. Did you see any marks —
A. Mark?
Q. —on the baby, on the little girl?
A. She had on clothes, I can’t see.
Q. Did you see her face?
A. Yeah, face was fine.
Q. Was anything wrong with her face?
A. Uh uh.
Q. I’ll hand you what’s been marked for identification as State’s Exhibit #1 —
A. Uh huh.
Q. —can you tell us what that is?
A. It’s a girl but I know, you know, because she come and go, you know, I can, like, you know, it’s regular, like somebody coming in and going and looking just coming here and she left.
Q. Is that the same little girl you saw that morning—
A. Uh huh.
Q. —with Betty Evans.
Mr. WILLEY: Objection, Your Honor.
A. Uh huh.
Court: Over-ruled.
*40Q. It is?
A. Uh huh.
Mr. SykeS: Thank you, that’s all the questions I have.
Nothing about this testimony convinces me that the State has carried its burden. This is still a “who done it” case. Did the defendant’s husband or some other person cause the subdural he-matoma by violently shaking the child before she was seen by Elsayed? I find no evidence in the record that the child would have died immediately after having been shaken, or would not have been able to walk while holding someone’s hand after having been violently shaken. Significantly, the State’s expert witness, Dr. Levy, testified not that the injuries were inflicted within five hours of the child’s death, but rather, within twelve hours. In responding to the district attorney’s question about the age of the injuries, including the subdural hematoma, suffered by the child, Dr. Levy testified: “I formed the opinion that because of the things that I saw microscopically, that they all happened in a very short period of time prior to death, probably in the order of less than twelve hours. Being more specific is very difficult, almost impossible.” Consequently, based on the above, and considering that the defendant did not admit shaking the child as was the case in State v. Lane, a case relied on by the majority, I believe defendant’s motion to dismiss should have been allowed. I therefore vote to reverse.
. The assumption is made because on nonsuit the evidence must be taken in the light most favorable to the State. The witness, Elsayed, was equivocal, however, as is evidenced by excerpts from his testimony:
Q. All right; how many times before had you seen that little girl?
A. Once in a while, a week, you know, like, not every week, once in awhile week, you know, she kept her like babysitter, you know.
Q. So, you’d seen the child several times before?
A. Uh huh.
Q. Are you sure that you saw this child . . . prior to August 10th, when had you last seen this child?
A. That’s last time I saw her.
Q. How are you able to remember that you saw this child particularly on August 10, 1983?
A. I saw her, you know, she’s fine, she’s walking with her, you know.
Q. Was there anything unusual about that particular day to you?
A. No, because I see, you know like somebody coming and going I watch, that’s my job, collecting rent. If somebody come [sic] in office [sic] something like that, you know.
Q. Are you sure about the date?
A. The date.
Q. That you saw this child? '
A. Same date.
Q. Are you sure it was not Wednesday August 3rd rather than the 10th that you saw this child?
*38A. Wednesday in the morning, about nine thirty, ten o’clock.
Q. You remember it was on a Wednesday?
A. I believe.
Q. You believe?
A. (No response.)
Q. Are you sure whether or not it was a Wednesday?
A. I’m not sure about the date, you know, but I, you know, some man keep [sic] coming and ask me, you know, some officer. I forgot his name, police officer, detective or whatever.
Q. But, you’re not sure of the date?
A. I’m not sure, you know, about the date. I remember about the day, whatever, you know, Wednesday, or Thursday, whatever, you know.
Q. But, you’re not sure about the date at all?
A. No, I’m not sure about the, I [sic] have to go look at a calendar and read you for that day.
Q. And, you’d seen the child several other times as well?
A. Uh huh.