Washington V. King

BECKER, J. -- Jimmy Lee King appeals his conviction for possession of cocaine pursuant to the Uniform Controlled Substances Act. He claims the trial court erred when it failed to provide the jury with an unanimity instruction under State v. Petrich, 101 Wash. 2d 566, 683 P.2d 173 (1984), because the State, while telling the court it would elect one of two possible acts of possession, failed to do so. We agree, and reverse. We also review the trial court's decision to admit, as a generic "felony", evidence of King's 9-year-old prior conviction for drug possession. Upon retrial, the trial court should consider the nature of the prior felony in balancing probative value against prejudice, without assuming that any prejudice can be cured by admitting it unnamed. Any decision to admit the felony as unnamed must be made subsequent to the balancing decision, not as a substitute for it.