Goff, J.
The trial court in this murder case instructed the jury that the State bore the burden of proving beyond a reasonable doubt that Sabrina Dunn did not act in self-defense “and/or” in defense of her dwelling. The same “and/or” construction appeared elsewhere in the instructions and the State echoed it in closing argument. We conclude that, on the facts of this case, the risk of jury confusion about the burden of proof rose to the level of fundamental error. Accordingly, we vacate the conviction and remand the case to the trial court.
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This opinion proceeds in two parts. First, we explain that fundamental error review applies because Dunn did not specifically object to the “and/or” language that she now raises as error. Second, after considering the instructions as a whole and the unusual facts of the trial, we conclude that the language describing the State’s burden of proof on Dunn’s defenses was so misleading as to produce fundamental error.
Dunn’s appeal focuses on the language of Final Instruction 7. The applicable standard of review depends on whether the issue was properly preserved at trial.
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We review Dunn’s instructional issue for fundamental error in two steps. We begin by explaining why the use of “and/or” in Final Instruction 7 was ambiguous and misleading. We then address whether, in view of the entire trial, the instructions rendered Dunn’s proceedings unfair and subjected her to a substantial and undeniable risk of harm. We conclude that Dunn’s challenge meets this high bar and merits a rare exception for relief on an otherwise waived claim.
The criminal code provides a number of justifications for the use of force. Two matter here: defense of self and defense of dwelling. A person “is justified in using deadly force” and has no “duty to retreat” if “the person reasonably believes that that force is necessary to prevent serious bodily injury to the person” or “the commission of a forcible felony.” Ind. Code § 35-41-3-2(c) (2019). A person is also “justified in using reasonable force, including deadly force,” if “the person reasonably believes that the force is necessary to prevent or terminate the other person’s unlawful entry of or attack on the person’s dwelling, curtilage, or occupied motor vehicle.” I.C. § 35-41-3-2(d).
The essential point the jury needed to understand here was that Sabrina Dunn’s use of deadly force was justified if she reasonably believed it was necessary to defend either herself or her dwelling. See Birdsong v. State, 685 N.E.2d 42, 45 (Ind. 1997) (stating that “one may use deadly force if he reasonably believes that such force is necessary to defend himself or his property”) (emphasis added). It was the State’s burden to prove beyond a reasonable doubt “that the defendant’s use of force was not justified.” Id. Because the trial court determined that self-defense and defense of dwelling were potentially at issue, the State had to disprove both justifications to obtain a guilty verdict. The trial court informed the jury in Final Instruction 7, however, that the State had to prove Dunn “did not act in self-defense and/or act in defense of her dwelling.” App. Vol. III, p. 194 (emphasis added).
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We warn against using “and/or,” especially in jury instructions, because it is ambiguous and potentially imprecise. Where wording permits “two contradictory interpretations, one correct and one erroneous,” the jury may be misled as to the law. LaPorte Community School Corp. v. Rosales, 963 N.E.2d 520, 525–26 (Ind. 2012). Even commentators who defend the use of “and/or” find it unsuitable for jury instructions in cases involving “more than one person, victim, or element.” Robbins, supra, at 320. And courts have reversed judgments where “and/or” rendered a jury charge ambiguous. See, e.g., Gonzalez, 130 A.3d at 1258, 1259 (where the defendant conspired in or acted as accomplice to robbery “and/or” aggravated assault); Harris v. State, 937 So.2d 211, 212 (Fla. Dist. Ct. App. 2006) (where the defendant “and/or” his co-defendant killed the victim). While we do not lay down a bright-line rule that instructing a jury using “and/or” is always error, we strongly caution trial courts to avoid this troublesome phrase.
Here, the presence of “not” in Final Instruction 7 rendered “and/or” even more ambiguous than usual. The jury needed to understand that the State had to prove Dunn did not act in either self-defense or in defense of her dwelling. But Final Instruction 7’s inclusion of an “and” option opened the door to confusion, suggesting that the State bore the burden of proving only that Dunn did not act in both self-defense and defense of her dwelling. Or, to put it another way, the jury may have understood Final Instruction 7 as giving the State the burden of disproving either self-defense or defense of dwelling, rather than both. This possibility rendered the instruction ambiguous and raises the specter of conviction without proof beyond a reasonable doubt of Dunn’s guilt.
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Here, the instructions as a whole failed to remedy the ambiguity introduced by Final Instruction 7. Indeed, the problematic phrase “and/or” appeared again in Final Instruction 8. The latter instruction told the jury that the “self defense and defense of dwelling statute” required (in part) that Dunn have a “subjective belief” that her force was “necessary” and “appropriate” to “prevent serious bodily injury and/or unlawful entry upon her dwelling.” App. Vol. III, p. 195 (emphasis added). Again, the inclusion of “and” sowed ambiguity, obscuring the fact that either of the two justifications would negate Dunn’s guilt.
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In sum, Bill interfered incessantly with Sabrina’s life, repeatedly broke into her home, and constantly harassed her in the face of pleas and protective orders. He entered her home uninvited in the dark after she begged him to stay away. The jury could have concluded that Sabrina reasonably believed nothing short of gunfire would terminate Bill’s trespass into her dwelling.
In making this determination, we do not disregard the State’s argument that Sabrina had no real need to shoot Bill. The evidence could be interpreted in the State’s favor as showing that Sabrina deliberately rushed Wilson out of the house, left her door unlocked, waited to shoot Bill if and when he entered, and then shot him over and over without first demanding he get out. What’s more, there was conflicting evidence as to whether Bill was carrying a knife in his hand. And the knife found under Bill’s body was not the same one Sabrina told police he was carrying, which raised questions over where it came from.
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The ambiguous, repeated, and uncured use of “and/or” to instruct the jury on the State’s burden of proof impaired the sole defense strategy Dunn pursued throughout the trial. Because Dunn’s defense had a strong basis in the evidence, we conclude there is a serious risk she was wrongly convicted without the State disproving beyond a reasonable doubt that she acted in defense of her dwelling. On these “unusual operative and procedural facts,” we find that fundamental error undermined the fairness of her trial. See Young, 30 N.E.3d at 728.
For the reasons stated, we vacate Dunn’s murder conviction and remand the case to the trial court for further proceedings.
Rush, C.J., and Massa, Slaughter, and Molter, JJ., concur.