(dissenting).
I respectfully dissent. In order to appeal a district court’s pretrial order, the State must “explain[] how the district *42court’s alleged error, unless reversed, will have a critical impact on the outcome of the trial.” Minn. R.Crim. P. 28.04, subd. 2. The State must “clearly and unequivocally [demonstrate] (1) that the district court’s ruling was erroneous and (2) that the ruling will have a ‘critical impact’ on the State’s ability to prosecute the case.” State v. Underdahl, 767 N.W.2d 677, 683 (Minn.2009) (citing State v. McLeod, 705 N.W.2d 776, 784 (Minn.2005)). Because the State cannot clearly and unequivocally demonstrate that the district court’s ruling was erroneous, I conclude that the State may not appeal the district court’s order and would reverse the court of appeals.
The trial court excluded Debra Zais’s testimony because of the marital privilege. The marital privilege provides, in relevant part:
A husband cannot be examined for or against his wife without her consent, nor a wife for or against her husband without his consent, nor can either, during the marriage or afterwards, without the consent of the other, be examined as to any communication made by one to the other during the marriage.
Minn.Stat. § 595.02, subd. 1(a) (2010). However, the marital privilege does not apply “to a criminal action or proceeding for a crime committed by one [spouse] against the other.” Id. Our court concludes that the marital privilege exception for crimes committed by one spouse against the other bars application of the privilege in this case.
With regard to the disorderly conduct charge, the undisputed facts are as follows. On November 14, 2009, a dispute occurred at the Zaises’ home, after which Zais left the home for the night and Debra Zais, his wife, removed the garage door opener from his truck so he could not reenter the home. Debra Zais claims that Zais called the next afternoon and threatened to break into the house or “do whatever he had to to get in.” The following evening, Debra Zais called the police, reporting that Zais had been drinking and was attempting to break down the garage door of their home. Upon their arrival, the police saw a truck in the driveway and Zais standing by the garage door. Zais indicated to the officers that he “knocked out some panels in the garage door” because Debra Zais would not let him in the house. On that basis, Zais was charged with disorderly conduct. In short, Zais was charged with disorderly conduct for attempting to enter his own home.
I begin by noting that, on the facts presented, it is unclear that Zais committed the crime of disorderly conduct against his spouse. Absent such a showing, the privilege applies to preclude Debra Zais’s testimony. If the privilege applies, Debra Zais’s testimony is, by its nature, inadmissible and as a result the exclusion of her testimony cannot have a critical impact. As alleged, Zais’s disorderly conduct was his attempt to enter his home. There were no protective or other orders in place excluding Zais from his home. Thus, as an owner of the home, Zais had a right to enter and “possess” the home. That is to say that, with respect to the home, Zais had “at all times the right to enter upon and enjoy every part of the common estate.” Petraborg v. Zontelli, 217 Minn. 536, 540, 15 N.W.2d 174, 177 (1944). Zais’s right to possession of the home included “the aggregate of rights that give a person the fullest power to enjoy, destroy, or dispose of a thing; one of these rights is to possess the thing.” Bryan E. Garner, A Dictionary of Modem Legal Usage 673 (2d ed.1995) (emphasis added). Given these rights, it is not clear that his attempt to enter his home by breaking in constituted the crime of disorderly conduct, much less disorderly conduct against Debra Zais. *43Nor is it clear based on the Advisory Committee Comments to the 1963 Criminal Code, which I find instructive. Minnesota Statutes § 609.72, subdivision 1(3) (2010), provides:
Whoever does any of the following in a public or private place, including on a school bus, knowing, or having reasonable grounds to know that it will, or will tend to, alarm, anger or disturb others or provoke an assault or breach of the peace, is guilty of disorderly conduct, which is a misdemeanor:
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(3) engages in offensive, obscene, abusive, boisterous, or noisy conduct or in offensive, obscene, or abusive language tending reasonably to arouse alarm, anger, or resentment in others.
With respect to section 609.72, subdivision l(3)’s, application, the Advisory Committee Comment to the statute states:
Two important qualifications are specified. The defendant must know or have reasonable grounds to know that his behavior will alarm, anger or disturb others. This is but an application of the principle that criminal liability should be based on fault. The second qualification is that “others” must be affected by the behavior. It is not sufficient that a single person or, depending on circumstances, only a few have grounds to complain. “Others” must be construed in the light of the objectives of the offense. A family quarrel in a private home would not be sufficient although it may be in the presence of the children or of other relatives or of visitors also in the home. But if passersby or neighbors were reasonably alarmed, angered or disturbed, the offense would be committed.
Advisory Committee on Revision of the Criminal Law, Proposed Minnesota Criminal Code § 609.72 cmt. (1963) (emphasis added). It seems to me that the facts of this case fit squarely within the category of cases the Advisory Committee indicated are outside the scope of the crime of disorderly conduct. In light of the Advisory Committee Comment and the fact that the charge here arises out of “[a] family quarrel” at a private home, I would conclude, in light of the objectives of the offense of disorderly conduct, that the exclusion of Debra Zais’s testimony does not meet the critical impact test because the State cannot establish that Zais’s conduct tended “reasonably to arouse alarm, anger, or resentment in others.” (Emphasis added.)
Finally, the court is simply wrong when it suggests that Debra Zais’s expected testimony would support “the element of disorderly conduct that Zais either knew or had reason to know that his conduct of breaking the panels of the garage door to enter the home would alarm, anger, or disturb another.” Implicit in that statement is the notion that the conduct underlying the disorderly conduct charge was directed at Debra Zais and that the conduct alarmed, angered, or disturbed Debra Zais.
The court’s reasoning misperceives whatever alarm, anger, or disturbance Debra Zais may have felt. In opposing the application of the marital privilege by the trial court, the State argued that:
If called to testify, Mrs. Zais would testify that the defendant got into an argument with his 15 year old daughter on [November 14] and pushed her. Mr. Zais left the home and Mrs. Zais took his garage remote. On the day of the incident, November 15, 2009, Mrs. Zais reported that she believed her husband was heading toward a bar in Maple Grove. Mrs. Zais reported to the police and would testify that Mr. Zais called her and stated he was going to come over to the house and break in if neces*44sary. Mrs. Zais told police in a recorded statement that she was afraid of Mr. Zais. Evidence suggested that the defendant in fact broke two panels off the garage door in an effort to break in. Because Mrs. Zais was fearful, she called 911. Mr. Zais is charged with disorderly conduct and DWI offenses.
Thus, it is clear from the State’s offer of proof that it was not the fact that Zais broke the garage door panels that alarmed, angered, or disturbed Debra Zais,1 it was the fear that if Zais successfully entered the home she would be on the receiving end of more of his abusive behavior. Given the source of her fear, it cannot be said that Zais’s act of breaking the garage door panels was the source of Debra Zais’s alarm, anger, or disturbance, or that the alleged disorderly conduct involved a crime by Zais against Debra Zais. Therefore, the trial court’s decision to apply the marital privilege to bar Debra Zais’s testimony was not erroneous. Further, because Debra Zais’s testimony was inadmissible because of the marital privilege, the trial court’s exclusion of that testimony did not have a critical impact on the State’s ability to prosecute Zais for disorderly conduct.2
. That it was not Zais's act of breaking the garage door panels that caused Debra Zais to be alarmed, angered, or disturbed can best be illustrated by changing the facts just slightly. If, instead of Debra Zais having locked Zais out of their home, the two of them had returned home after an evening out only to discover that their garage door was not working because of a power outage and their house keys were locked inside the house, there would have been no fear on the part of Debra Zais even though the conduct was the same as that which gave rise to the disorderly conduct charge. That is to say, under those circumstances, if Zais “broke two panels off the garage door in an effort to break in,” there would be no cause for Debra Zais to be alarmed, angered, or disturbed.
. Interestingly, during oral argument counsel for the State conceded that the State's purpose in having Debra Zais testify was to obtain her testimony regarding the driving-while-impaired offense.