dissenting.
[¶ 35] I respectfully dissent.
[¶36] The majority opinion correctly recites the distinct three provisions of the statute at issue and then, as did the district court, blends two of the provisions, to reach an impermissible result based upon the evidence before the district court.
[¶37] Once a person has been found not guilty of a crime by reason of lack of criminal responsibility and committed' for treatment- under Chapter 12.1-04; that person has the burden to establish that-he is entitled to a modification of his commitment or to a discharge. His burden is by a preponderance of the evidence. This is not a burden of proof beyond all possibilities, but that is the burden the district court and the majority opinion have imposed upon Davis.
[¶ 38] Section 12.1-04.1-25(5)(a), N.D.C.C., requires the district court to discharge a person' who is mentally ill, as Davis is, but who poses no substantial risk of committing a criminal act — “it shall order that the individual be discharged from further constraint under this chapter.” (Emphasis added). The majority opinion relies upon the fact that the district court failed to make the necessary finding that Davis poses no substantial risk of committing a crimina;! act and instead made the finding, purportedly under § 12.1-04.1-25(5)(a), “there is not a substantial risk that Davis will' commit, as a result of mental illness or defect, a criminal act of violence threatening another individual with bodily injury or inflicting property damage at the present time. However, the Court also find[s] that based on Dr. Wegner and Dr. Sullivan’s reports, the risk of potential subsequent schizophrenic episodes increase if medications are stopped.” The district court has blurred fwo sections of the statute, imposed an impermissible burden of proof on Davis under the statute and the evidence presented at this hearing, and mischaracterized evidence filed with the court and offered at the" hearing. Instead, the district court is relying on evidence heard years ago.
[¶ 39] Both doctors filed reports prior to.the hearing and both testified. In the two-page report of Dr. Sullivan, the State’s expert, there is no discussion of the potential for subsequent schizophrenic episodes if medications are stopped. In her testimony, Dr. Sullivan was asked:
*294Q. Now the end of your report you indicate that there may still be a risk. Is that correct or is that — am I putting words in your mouth? Or during your report and Doctor Wegner’s?
A. I. don’t believe I explicitly stated that there was a risk.
[¶ 40] Rather, the end of Dr. Sullivan’s report states:
In conclusion, Mr. Davis continues to suffer from Schizophrenia, Paranoid Type, but this is well managed with medications. He Has been very compliant with taking medications, keeping therapy appointments, and generally maintaining good mental health. Mr. Davis has been compliant with all other recommendations and expectations of DHS to date.
[¶ 41] Dr. Sullivan’s testimony at the hearing confirmed her report:. “Mr. Davis has been, self administering medications for some time now, several months. And has again demonstrated no problems with that at all.”
[¶ 42] Dr. Wegner’s report said this about the .potential for discontinuing medication: .
There is a potential risk of deterioration if he chose to stop taking .his medi- . cations, yet there is no behavioral data to suggest this factor being a current concern. There is also no behavioral data to suggest he is at substantial risk of committing a criminal act as a result of his mental illness if he were to be released from the commitment. Mr. Davis .appears to have enough insight and acquired learning from - his treatment regimen to seek out services and resources if- stress or additional mental health symptoms became a factor. A safety plan addressing these potential risks is currently in place and all requirements appear to be met for minimal risk to the community or self,
[¶ 43] The district court relied on testimony from Davis’s August 2012 disposi-tional hearing, rather than the evidence of Davis’s present status. The district, court reasoned that there is a potential Davis will discontinue taking medication, as described by Dr. Wegner, and the court was “provided with no empirical or statistical data regarding how common it is for persons suffering from paranoid schizophrenia to cease taking their medications.” Knowing the statistical frequency, in which a sampling of people who suffer from this mental illness will act in this manner simply does not address the issue of whether Davis presents a substantial risk to do so and, further, whether he presents a substantial risk to commit a crime.. The evidence in this case addressed the likelihood that Davis would stop taking his medication, or would commit a crime, and the court is obliged to measure his entitlement to be discharged by that evidence, not by a statistical measure.
[¶44] The court’s other proffered explanation is that it is hot in the “best interests and protection of Davis nor society to afford Davis the sole decision making authority to decide whether or not to take his anti-psychotic medications.” That is again restructuring the test under the statute. The legislative policy is stated clearly: when a person who is mentally ill, but is no longer by reason of that mental illness a substantial risk to commit any crime, that person is entitled to a discharge. N.D.C.C. § 12.1-04.1-25(5)(a). The courts, under the paternalistic guise of protecting society, are not entitled to thwart that policy by denying a discharge. The statute determines the protections society requires.
[¶ 45] When specifically asked the triggering question under subsection (a) of N.D.C.C. § 12.1-04.1-25(6), Dr. Sullivan *295acknowledged there is no substantial risk Davis will commit a crime, if discharged:
Q. Okay. Doctor would you agree, currently, that based on Mr. Davis’s mental illness there is not a substantial risk he will commit a crime?
A. I believe based on his current presentation his ongoing compliance with medications, I believe that isn’t a substantial risk at this time.
Q. Okay. Assuming arguendo, Mr. Davis is discharged completely — via court order, is there a substantial risk based on his mental illness that Mr. Davis will commit a crime?
A. I’m not seeing — could you rephrase the question, please?
Q. If Mr. Davis is discharged by the Court, is there a substantial risk Mr. Davis based on his mental illness will commit a crime?
A. I don’t believe there’s a substantial risk.
[¶ 46] Dr. Wegner also testified:
Q, Do you have an ultimate opinion if Mr. Davis should be discharged from release of the executive director’s custody?
A. I do believe he’s prepared for discharge.
Q. Now currently based on Mr. Davis’s mental illness is there a substantial risk he will commit a crime?
A. No.
Q. If Mr. Davis is discharged by the Court based on his mental illness; is there a substantial risk he will commit a crime?
A. No.
Q. And could you tell the Court why you have that opinion?
A. He’s demonstrated consistent stability for years. He’s demonstrated medication compliance. He has obr tained insurance, he’s obtained gainful employment, he’s made North Dakota the resident of his — the residence of his family. He has obtained duplicate services and demonstrated a willingness to see two psychiatrists and two psychologists to show his stability. And in all four of those individual’s records they all note a well-functioning, in remission individual that is at low risk for risk of harm to self or others.
[¶ 47] A decision should not be insulated from review because. of the district court’s failure to make a necessary finding of fact. It is undoubtedly true that “there is not a substantial risk that Davis will commit, as a result of mental illness or defect, a criminal act of violence threatening another individual with bodily injury or inflicting property damage at the present time.” This has been true since Davis was granted conditional release in September 2013. It is also not the fact at issue. Davis filed a petition for discharge. The court must decide whether Davis presents a substantial risk that he will commit any crime. The district court acknowledged that “both medical experts agreed that Davis has been compliant with his medication regime and that at present, there is not a substantial risk that Davis will commit a crime.” The district court did not make a finding that Davis presents a substantial risk to commit a crime. On this record, the court could not make such a finding,- ■ Instead, the district court relied on this logic: Davis was required to comply with the terms of the conditional release.- Under that reasoning, Davis can never be released under N.D.C.C. § 12.1-04.1-25(5)(a) and the plain meaning of the statute is frustrated.
[¶48] There is always a potential, a possibility, that a mentally ill person will stop taking his medication. Davis’s burden is to show by a preponderance of the *296evidence that, at the time of his petition for discharge, he presents no substantial risk of committing a crime. We have defined this evidentiary burden:
A preponderance of the evidence is “evidence more worthy of belief,” “the greater weight of evidence,” or “testimony that brings the greater conviction of truth.” Jimison v. N.D. Workmen’s Comp. Bureau, 381 N.Wq.2d 822, 824 (N.D.1983) (citations omitted). That is, the preponderance standard is met by evidence which is more convincing or of greater weight than the opposing evidence, namely, evidence which as a whole shows the fact to be proved is more probable than not. Black’s Law Dictionary 1182 (6th ed.1990).
Kraft v. State Bd. of Nursing, 2001 ND 131, ¶ 21, 631 N.W.2d 572. It is not a burden that requires the elimination of any possibility. The evidence of the two experts about Davis’s present status is un-controverted. Davis has met his burden of proving by a preponderance of the evidence that there is not a substantial risk that he will stop taking his medications, or that he will commit a crime.
[¶ 49] Davis’ must get his medications somewhere and, as a veteran, wants to get them through the Veterans Administration and continue his therapy through the VA. A discharge would mean Davis would self-arrange these matters as would any other non-committed veteran.
[¶ 50] The district court did not, and this Court does not, have the option of changing the burden of proof and the standard under the statute. The evidence does not support the order issued by the district court. Therefore, I dissent.
[¶ 51] CAROL RONNING KAPSNER