COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73676 CITY OF SHAKER HEIGHTS : JOURNAL ENTRY : AND Plaintiff-appellee : OPINION : -vs- : : CHRISTINE SLEDGE : : Defendant-appellant : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 17, 1998 CHARACTER OF PROCEEDING: Criminal appeal from the Shaker Heights Municipal Court Case No. 97-CRB-2870 JUDGMENT: Reversed and Vacated DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: LISA M. GALE, ESQ. ASSISTANT PROSECUTOR City of Shaker Heights 3400 Lee Road Shaker Hts., Ohio 44120 For Defendant-Appellant: MYRON P. WATSON, ESQ. 310 Lakeside Avenue, N.W. 595 Courthouse Square Blvd. Cleveland, Ohio 44113 DYKE, P.J.: Defendant Christine Sledge appeals from her conviction for -2- carrying a weapon in violation of Section 753.11 of the Codified Ordinances of the City of Shaker Heights. For the reasons set forth below, we reverse and vacate defendant's conviction. On October 4, 1997, defendant was issued citations for making an improper lane change and for carrying a bayonet with a fifteen inch blade, in violation of Shaker Heights Codified Ordinance Section 753.11. Defendant pleaded not guilty to the charges and the matter proceeded to trial to the court. The city presented the testimony of Shaker Heights Police Officer William Amato. Officer Amato stated that while on patrol in a marked police car, he observed defendant's vehicle abruptly travel from the right lane to the left lane without signaling. Officer Amato testified that another driver was forced to quickly stop and that defendant nearly caused a collision. Officer Amato stopped defendant's vehicle and observed a sheathed bayonet protruding from a pouch behind the driver's seat. The trial court agreed that the item was a bayonet (Tr. 9, 21) and also took judicial notice that the item was a bayonet. (Tr. 21) Defendant testified that she proceeded from the left lane to the right lane because other police cars were approaching with sirens and lights activated. She was then stopped by a third police car driven by Officer Amato. Defendant, who is eighty-three years old, explained that the bayonet has been in the family for years and she uses it to dig around her family grave. Defendant was subsequently found guilty of both the improper -3- lane change and weapon charges. The trial court fined defendant $15 plus court costs on the traffic infraction and fined her $100, suspended, on the weapon charge. Defendant now appeals and assigns two errors for our review. Defendant's first and second assignments of error are interrelated and state: THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT ENTERED JUDGMENT OF GUILTY AND THE CITY FAILED TO PROVE THE CARRYING CONCEALED WEAPON CHARGE. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT TOOK JUDICIAL NOTICE THAT THE SWORD WAS A DEADLY WEAPON, NEGATING THE CITY'S BURDEN OF PROOF THAT THE SWORD WAS DESIGNED OR SPECIFICALLY ADAPTED FOR USE AS A WEAPON. Within these assignments of error, defendant asserts that the trial court erred in convicting her of violating Shaker Heights Codified Ordinance 753.11 since she did not have intent to use the knife as a weapon. Defendant further maintains that the state was required to present expert testimony to demonstrate that the knife was in fact a deadly weapon and was not permitted to take judicial notice of this fact. Addressing the procedural question first, we note that a trial court is permitted to take judicial notice of adjudicative facts pursuant to Evid.R. 201. This rule provides in relevant part as follows: (A) Scope of rule. This rule governs only judicial notice of adjudicative facts; i.e., the facts of the case. (B) Kinds of facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial -4- jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. (C) When discretionary. A court may take judicial notice, whether requested or not. Thus, a trial court can take judicial notice of the facts of the case. See Staff Notes to Evid.R. 201. Applying the foregoing, we note, as a preliminary matter, that there is no evidence that the trial court took judicial notice that defendant had a deadly weapon. Indeed, Shaker Heights Codified Ordinance 753.11 does not refer to deadly weapons. Rather, the trial court took judicial notice that the item was a bayonet within the meaning of the ordinance. (Tr. 21) As to whether this was an erroneous exercise of judicial notice, we observe that a bayonet is defined as: A steel blade attached at the muzzle end of a shoulder arm and used in hand-to-hand combat. Webster's New Collegiate Dictionary (1977) 96. In light of this definition, we conclude that the issue of whether an article is a bayonet is capable of accurate and ready determination by resort to reliable sources. In addition, Officer Amato, the prosecuting attorney and the court agreed that the item found in defendant's car was, in fact, a bayonet. We are therefore unable to conclude that the trial court erred in taking judicial notice that defendant had a bayonet. Turning to the substantive question of whether the trial court properly convicted defendant of violating Shaker Heights Codified Ordinance 753.11, we begin by examining the language of the -5- ordinance. It provides: No person shall carry on or about this person any firearm, bowie knife, dirk, machete, blackjack, billy club or brass knuckles, whether concealed or not, provided that a firearm may be carried as permitted or exempted by any provision of State law and in strict compliance with all of the provisions of this chapter. It is clear that the element of intent is not stated and the ordinance therefore imposes strict liability. See Akron v. Rasdan (1995), 105 Ohio App.3d 164, 174; Columbus v. Still (June 2, 1989) Franklin App. No. 88AP-314, unreported. Significantly, however, the ordinance does not proscribe the carrying of bayonets and there is no additional prohibition of other dangerous weapons. Construing it, as we must, in favor of the accused, State v. Greer (1996), 114 Ohio App.3d 299, 302; Tallmadge v. Stevenson (1996), 113 Ohio App.3d 504, 506, and in light of the fact that it is written in the disjunctive and does not include a broader catchall term, its terms are mutually exclusive. Id.; State ex rel. Rear Door Bookstore v. Tenth District Court of Appeals (1992), 63 Ohio St.3d 354, 361. Accord Investors REIT One v. Jacobs (1989), 46 Ohio St.3d 176, 181 (applying the Latin phrase expressio unius est exclusio alterius, i.e., the express inclusion of certain enumerated alternatives implies the exclusion of other non-enumerated alternatives). Therefore, articles which are not specifically stated in the ordinance may not be included within its scope. In accordance with the foregoing, defendant's possession of a bayonet does not constitute a violation of Shaker Heights Codified Ordinance 753.11. Defendant's conviction for this offense is -6- therefore reversed and vacated. -7- This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellee her costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. KARPINSKI, J., AND ROCCO, J., CONCUR ANN DYKE PRESIDING JUDGE N.B. This entry is an announcement of the court's decision. See App. R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App. R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .