¶1dissenting.
¶2I fully agree with the majority that the burden of persuasion was impermissibly shifted to the defendant in this case because in order to rebut the presumption of legitimacy he was required to prove nonaccess during the period of conception. The burden of persuasion on any element of a criminal offense may not through the use of presumptions be shifted to a defendant; however, the burden of production may be placed on the defendant to produce some evidence to raise a factual issue on the question involved. If the defendant fails to produce such evidence then the presump*513tion remains in the case and is mandatory. If the defendant does produce such evidence then the presumption disappears but the natural inferences arising from the proven facts from which the jury may or may not draw a certain conclusion remain in the case.
¶3The majority holds that shifting the burden of persuasion to the defendant was harmless error since defendant did not meet the burden of production as it is defined in the majority opinion. Under the rule announced today a defendant can meet his burden of production sufficient to rebut the presumption of legitimacy and leave only the inferences that arise from the proven facts if he has some evidence that although he had access to his wife he in fact did not have sexual relations with her or that someone else had sexual relations with her during the period of conception.
¶4Defendant produced such evidence. The majority holds that he did not produce such evidence because the evidence conclusively shows that
“[conception . . . according to all the evidence, must have occurred at a time when defendant was living with and could have had sexual relations with his wife and before her sexual encounters with the witness Carl Pinnley.”
¶5The conclusive evidence relied upon by the majority is as follows:
“The mother first missed menstruation in July 1977 and . . . a full term, eight pound, ten ounce baby was born some nine calendar months thereafter.”
¶6I dissent because I find the evidence to be far from conclusive. The majority is without evidence as to what time during the month of July she should have had her normal cycle. If it was July 1, nine calendar months later would be April 1 and the baby was born on May 4, 1978. If it was the last day of July then nine calendar months later would be the last day of April which is much closer to the baby’s date of birth.
¶7The trial judge in this case relied upon instructions regarding the period of conception that are quoted with approval in State v. Hickman, 8 N.C. App. 583, 174 S.E. 2d 609 (1970) in instructing the jury as follows:
“This period of time which the law recognizes is the period of time during which the child could have been conceived is a *514period of time sometimes referred to in the law as normal period of gestation. May be anywhere from seven, eight, nine, nine and a half or ten months from the date of birth of the child, and the only way the assumption (presumption) of legitimacy may be rebutted is by evidence tending to show the husband could not have had access to the wife during the period of time referred to.” [Emphasis added.]
¶8This rule stretches the parameters for the period of conception for a normal pregnancy to its maximum but it is a possibility and it was employed in the trial of this case. It would certainly include the time after defendant and his wife separated and she began her relations with Pinnley. If this period of time for conception were to be used then defendant did meet his burden of production.
¶9The average term of pregnancy is 280 days. Eubanks v. Eubanks, 273 N.C. 189, 159 S.E. 2d 562 (1968). This term includes both the period of time from last menstruation to conception (an average of 14 days) and the time from conception to birth (an average of 266 and not 280 days). As stated in 5B Lawyer’s Medical Cyclopedia § 37.2a (1972):
“The average duration of pregnancy is 266 days. This means that delivery should occur ten lunar months (280 days) following the first day of the last menstrual period. The calculation of the expected delivery date employs Naegele’s rule, as follows:
A. Subtract three months from the first day of the last menstrual period.
B. To the date obtained in A, add seven days.
In clinical practice, only 4°/o of women deliver on their due date, but 80% deliver within the period of two weeks before and two weeks after the calculated date.”
¶10Starting with the date of birth, May 4, 1978, and counting back 266 days, the date obtained is August 11, 1977. The 280th day would be July 28, 1977. Defendant separated from his wife on August 12, 1977 (the 265th day) and she began sexual relations with Pinnley on August 15, 1977 (the 262nd day).
¶11*515It may be far more likely that conception occurred in July of 1977 while defendant and his wife were living together but the evidence is not conclusive on that point. This is a criminal case and I do not believe that the constitutional error committed was harmless beyond a reasonable doubt. Since the average number of days from conception to birth is 266 days and the calculations are no more accurate than plus or minus two weeks from the woman’s last menstruation even for a full term, normal pregnancy, there is at least a reasonable possibility that conception occurred at the point when she separated from her husband and began relations with Pinnley. The conception of the child may have been the last product of her relationship with her husband or the first product of her sexual affair with Pinnley. Pinnley, and not her husband, was the more likely object of her affections at that point in time.
¶12For these reasons I believe that scrupulous concern for the fairness of the process and of the result requires that there be a new trial at which the jury would be applying the law as set forth in this opinion to the evidence as presented. Under the majority’s conclusion that will not be achieved in this case due to the conclusive evidence the majority discerns from the record.