(concurring) — The majority affirms Thomas Mullin-Coston’s conviction by asserting “the doctrine of nonmutual collateral estoppel does not apply in criminal cases where the basis for asserting preclusion is a jury verdict in the case of a separate defendant.” Majority at 120. While I agree with the majority’s ultimate disposition, I write separately because the majority’s dictum is needlessly broader than it should be.
This court generally considers only those issues necessary to properly dispose of the case, rather than examining each and every issue posed by the parties. Griffin v. W. RS, Inc., 143 Wn.2d 81, 88, 18 P.3d 558 (2001); Schmidt v. Cornerstone Invs., Inc., 115 Wn.2d 148, 165, 795 P.2d 1143 (1990); Ajax v. Gregory, 177 Wash. 465, 475, 32 P.2d 560 (1934). The majority’s sweeping language is plainly unnecessary because these facts are not enough to invoke collateral estoppel in the first place.
There are four elements that must be met before the court will preclude litigation of an issue in a subsequent case:
(1) Was the issue decided in the prior adjudication identical with the one presented in the action in question? (2) Was there a final judgment on the merits? (3) Was the party against whom the plea of collateral estoppel is asserted a party or in privity with the party to the prior adjudication? (4) Will the application *122of the doctrine not work an injustice on the party against whom the doctrine is to be applied?
State v. Tili, 148 Wn.2d 350, 361, 60 P.3d 1192 (2003) (emphasis added); see also Nielson v. Spanaway Gen. Med. Clinic, Inc., 135 Wn.2d 255, 262-63, 956 P.2d 312 (1998). The party asserting preclusion has the burden to prove all four elements. State v. Williams, 132 Wn.2d 248, 254, 937 P.2d 1052 (1997); McDaniels v. Carlson, 108 Wn.2d 299, 303-04, 738 P.2d 254 (1987). Absence of any element prevents application of collateral estoppel. Tili, 148 Wn.2d at 361; McDaniels, 108 Wn.2d at 303. “In addition, collateral estoppel precludes only those issues that have actually been litigated and determined. . . .” McDaniels, 108 Wn.2d at 305 (emphasis added).
Here the asserted basis for issue preclusion is Jason McDaniels’ conviction of second degree murder, which Mullin-Coston claims is proof of the jury’s determination that McDaniels, Mullin-Coston’s cohort, did not act with premeditation. But this record only suggests the McDaniels jury either acquitted McDaniels of first degree murder or simply failed to reach unanimity on the premeditation issue. Specifically, the jury verdict which convicted McDaniels of second degree murder provided:
We, the jury, find the defendant, Jason Roy McDaniels, not guilty of the crime of Murder in the First Degree as charged, or being unable to unanimously agree as to that charge, find the defendant Jason Roy McDaniels,_GUILTY_ (write in not guilty or guilty) of the lesser included crime of Murder in the Second Degree.
Clerk’s Papers (CP) at 315 (emphasis added).7 The jury elected to forgo using the general verdict form, instead of returning a unanimous verdict of not guilty to first degree *123murder. See CP at 316.8 These facts signal the possibility — if not probability — the jury did not reach unanimity on the premeditation issue.
The distinction between a unanimous “not guilty” verdict and a jury’s failure to reach unanimity on the higher charge undercuts Mullin-Coston’s assertion that McDaniels’ second degree murder conviction ipso facto constituted a conclusive determination on the premeditation issue, even though here a not guilty verdict and failure to reach unanimity had the same consequence. For instance, when only a single charge is at issue in a criminal trial, the jury’s failure to reach unanimity does not result in the conclusive rejection of the State’s case but rather a hung jury and an opportunity to reprosecute the defendant. See Arizona v. Washington, 434 U.S. 497, 505, 98 S. Ct. 824, 54 L. Ed. 2d 717 (1978) (double jeopardy does not prevent second prosecution of same defendant when first prosecution results in hung jury); State v. Carson, 128 Wn.2d 805, 821, 912 P.2d 1016 (1996) (same). Absent some showing by Mullin-Coston that this jury unanimously concluded McDaniels did not act with premeditation, he fails to meet his burden to prove the first jury “determined” the issue of McDaniels’ premeditation McDaniels, 108 Wn.2d at 305.
Yet the majority nonetheless imposes a per se bar against all criminal defendants from asserting nonmutual collateral estoppel when the basis for estoppel is a jury verdict. Though I recognize both the United States Supreme Court and an overwhelming majority of jurisdictions are in accord with the majority’s ultimate conclusion,9 it is not appropri*124ate for us to join that group unless the issue is properly before us, and the majority even recognizes this principle by refusing to consider the ancillary issue raised by amicus— whether nonmutual collateral estoppel may be asserted against the State in a civil case. See majority at 120 n.6.
Regardless of the merits to the majority’s disposition, I posit this court is improvident to decide issues unnecessary to the disposition of the case at hand. Judicial restraint demands no less.
For the foregoing reasons I concur that Mullin-Coston’s conviction should be affirmed.
The jury foreperson wrote the word “GUILTY” on a blank line.
The general verdict form was left blank, with the exception of “NOT USED” written at the top of the form:
We, the jury, find the defendant, Jason Roy McDaniels,_ (write in not guilty or guilty) of the crime of Murder in the First Degree as charged.
CP at 316.
See Standefer v. United States, 447 U.S. 10, 22-24, 100 S. Ct. 1999, 64 L. Ed. 2d 689 (1980); see also, e.g., Kott v. State, 678 P.2d 386, 393 (Alaska 1984); People v. Allee, 740 P.2d 1, 10 (Colo. 1987); Reid v. State, 719 N.E.2d 451, 456 (Ind. Ct. App. 1999); State v. Arevalo, 2002 NMCA 62, ¶¶ 11-13, 132 N.M. 306, 47 P.3d 866, 869-70.