IN THE

ARIZONA COURT OF APPEALS

DIVISION TWO

THE STATE OF ARIZONA,

Appellee,

v.

JAMES HAMBERLIN,

Appellant.

No. 2 CA-CR 2021-0025

Filed July 11, 2022

Appeal from the Superior Court in Pinal County

No. S1100CR202002610

The Honorable Patrick K. Gard, Judge

APPEAL DISMISSED

COUNSEL

Kent P. Volkmer, Pinal County Attorney

By Thomas C. McDermott, Bureau Chief – Criminal Appeals, Florence

Counsel for Appellee

Baker & Baker, Phoenix

By Thomas M. Baker

Counsel for Appellant

OPINION

Vice Chief Judge Staring authored the opinion of the Court, in which 

Presiding Judge Eppich and Judge Brearcliffe concurred.

S T A R I N G, Vice Chief Judge:
STATE v. HAMBERLIN

Opinion of the Court

2

¶1 The Apache Junction Justice Court convicted James 

Hamberlin of five violations of Arizona Administrative Code R12-4-319(B),

1

prohibiting locating wildlife from or with the aid of an aircraft during a 

hunt in an open big game season, as prohibited under A.R.S. § 17-309(A)(1).

The court did so after denying his pretrial motion for a finding that R12-4-

319(B) required specific intent and his alternative motion for dismissal on 

overbreadth and vagueness grounds. On appeal, the superior court 

affirmed the convictions, concluding that a violation of R12-4-319(B) is a 

strict liability offense not requiring proof of a culpable mental state and that

the rule is neither vague nor overbroad. Hamberlin now appeals to this 

court. Because we conclude R12-4-319(B) is not a strict liability offense, we 

lack jurisdiction to grant relief and therefore dismiss Hamberlin’s appeal.

Factual and Procedural Background

¶2 In 2018, the state charged Hamberlin with eleven class two 

misdemeanor violations of § 17-309(A)(1), which provides that “it is 

unlawful for a person to . . . [v]iolate . . . any rule adopted pursuant to [Title 

17].” Seven of these charges alleged Hamberlin had violated R12-4-319(B)

based on flights he made using a powered parachute between September

and November 2017.2 R12-4-319, entitled “Use of Aircraft to Take Wildlife,” 

provides, in relevant part, that “a person shall not locate or assist in locating 

wildlife from or with the aid of an aircraft . . . in a hunt unit with an open 

big game season,” defining “locate” as “any act or activity that does not 

take or harass wildlife and is directed at locating or finding wildlife in a 

hunt area.” R12-4-319(B), (E). Hamberlin filed a motion asking the trial 

court to find that R12-4-319 “requires the specific intent to fly with the intent 

1 R12-4-319(B), formerly R12-4-319(C), was renumbered in 2019. 

25 Ariz. Admin. Reg. 1047, 1109 (2019). However, because none of the 

substantive changes are relevant to this appeal, we cite the current version 

of the rule. Likewise, absent material revisions after the relevant dates, 

statutes and rules cited refer to the current versions unless otherwise 

indicated.

2The state also charged Hamberlin with four violations of R12-4-

319(D), now R12-4-319(C). 25 Ariz. Admin. Reg. 1047, 1109. Before trial, on 

the state’s motion, the court dismissed two of these charges. Hamberlin 

was subsequently acquitted of the remaining two counts charged under this 

subsection. 
STATE v. HAMBERLIN

Opinion of the Court

3

to locate wildlife.” Alternatively, he moved for dismissal, arguing the rule 

is unconstitutionally vague and overbroad. 

¶3 At the hearing on Hamberlin’s motion, the following 

exchange occurred:

[DEFENSE COUNSEL]: . . . I didn’t hear the 

State argue there wasn’t . . . an imputed Mens 

rea under R 12-4-319[E] directed at locating 

wildlife. Does it require the State to prove that 

a flight was directed at locating wildlife? Now 

they want to throw out like you just 

commented, you know you got all this evidence 

. . . but if it’s strict liability none of that’s 

necessary but they seem to believe it is 

necessary and that’s because under . . . R 12-4-

319[E] the flight has to be directed at locating 

wildlife for the purpose of taking wildlife not 

recreational flying. The agency made it 

themselves in their public comments. This 

administrative rule is not aimed or to prohibit 

recreational flying even if there’s a hunt going 

on on the ground. They made that clear.

THE COURT: Okay I’ve made my ruling.

[DEFENSE COUNSEL]: The ruling that there’s 

no Mens rea required?

THE COURT: Well the statute says strict 

liability okay. That’s my determination.

[DEFENSE COUNSEL]: And just to clarify so 

we know what the trial’s going to be about. 

What would the State have to prove if there’s no 

Mens rea?

THE COURT: Well the State has indicated 

they’re going to prove beyond mere strict 

liability. They’re going to produce evidence 

beyond the fact that he just flew over the area. 

You’re saying that it could be for recreational 

purpose. My point is the State has indicated 
STATE v. HAMBERLIN

Opinion of the Court

4

they’re going to prove it was well beyond that 

and your defense is going to be what, that it was 

just for recreational purposes?

[DEFENSE COUNSEL]: But you’re saying there 

is no defense for recreational purposes that 

there’s no Mens rea. And yes that is important 

to know what we need to show where the 

defense is. If you’re saying that recreational 

flying that happens to locate wildlife is an 

offense we certainly need to know that before 

trial. 

¶4 In response, the state argued its theory of the case was that 

Hamberlin had been involved in “an on-going common scheme plan that 

the State will prove beyond a reasonable doubt.” It continued, “Having 

established that, each one of the violations is strict liability because he’s up 

in the air and the circumstantial evidence if not direct evidence will show 

that he’s continuing to provide that scouting location and information to a 

person who he knows to be a licensed guide.” 

¶5 Relying on State v. Slayton, 214 Ariz. 511 (App. 2007), the trial 

court denied Hamberlin’s motion, concluding:

[T]he Court [of Appeals] and Slayton has 

already made its decision, but they’ve cited the 

statute that they were going to—they cited Rule 

12-4-319 which says what the activity is that 

they have to prove. So I guess I’m not 

appreciating your argument. I’ve made my 

ruling I believe that Slayton says it’s a strict 

liability offense but I do believe it’s still under 

the rule, this is what they have to establish and 

they can present this evidence.

It also rejected Hamberlin’s arguments regarding vagueness and 

overbreadth and subsequently denied his motion for reconsideration. 

Following a bench trial, Hamberlin was convicted of five of the seven 

counts involving R12-4-319(B) and ordered to pay a fine of $2,500.

¶6 On appeal before the superior court, Hamberlin reasserted his 

arguments, and the court, citing Slayton, concluded the trial court had not 

erred in finding that offenses charged under § 17-309(A)(1) are strict 
STATE v. HAMBERLIN

Opinion of the Court

5

liability offenses. Further, it determined, based on the regulatory nature of 

R12-4-319 and § 17-309(A)(1) and “the penalty attached to the misdemeanor 

offenses,” as well as “the plain meaning of the language used in A.A.C. 

R12-4-[3]19,” which “does not explicitly state a mens rea for the crime,” the 

trial court had not erred in ruling that R12-4-319 is a strict liability offense. 

In concluding the evidence was sufficient to support Hamberlin’s 

convictions, the court stated:

[T]he trial court . . . previously ruled that the 

offenses were strict liability offenses, and 

therefore, the State was not required to show 

that [Hamberlin] intended to locate wildlife 

with or without the intent to take such wildlife. 

The State was required to show that [he] merely 

engaged in such conduct. The Court will note 

that there was some evidence presented at trial 

that [Hamberlin] intended to engage in such 

conduct, but the State did not need to prove the 

higher standard of intentionally since the 

offenses were merely strict liability. 

The court also rejected Hamberlin’s contention that R12-4-319 is vague and 

overbroad, concluding the “plain language of the statute clearly defines the 

conduct that is illegal.”

¶7 Hamberlin now appeals to this court, asserting that, based on 

the plain language of the administrative rule, evidence of legislative intent, 

and “rules of statutory interpretation,” the trial court erred “in holding that 

A.R.S. § 17-309(A)(1) and AAC R12-4-319 are strict liability offenses” not 

requiring “proof that [he] flew an aircraft with the intent to locate wildlife 

over a hunt unit with a big game hunt in progress.” (Emphasis omitted.)

Further, he argues, if we determine the administrative rule is a strict liability 

offense, “then it is clearly both vague and overbroad since it would 

encompass recreational flyers who have nothing to do with hunting,” and 

the “Rule of Lenity requires [us] to resolve any ambiguity” in his favor. 

Finally, he contends “the State failed to produce any evidence that [he] flew 

his powered para-plane with the intent to locate wildlife with or without 

the intent to take such wildlife,” and therefore the trial court erred in 

finding him guilty of violating R12-4-319, and the superior court erred in 

affirming the trial court’s rulings. 
STATE v. HAMBERLIN

Opinion of the Court

6

Jurisdiction

¶8 A criminal defendant “may appeal as prescribed by law and 

in the manner provided by the rules of criminal procedure.” A.R.S. § 13-

4031. When, as here, a case arising in a justice court is then appealed to the 

superior court, our jurisdiction is limited by A.R.S. § 22-375, which 

provides:

A. An appeal may be taken by the 

defendant, this state or any of its political 

subdivisions from a final judgment of the 

superior court in an action appealed from a 

justice of the peace or municipal court, if the 

action involves the validity of a tax, impost, 

assessment, toll, municipal fine or statute.

B. Except as provided in this section, there 

shall be no appeal from the judgment of the 

superior court given in an action appealed from 

a justice of the peace or a municipal court.

Further, in State v. Okken, this court acknowledged that, under these 

circumstances, “[o]ur jurisdiction is limited . . . to the question of [a] 

statute’s facial constitutionality.” 238 Ariz. 566, ¶ 8 (App. 2015). “If the 

statute is facially constitutional our inquiry is at an end, as we are without 

jurisdiction to review any alleged unconstitutional application of the 

statute.” State v. Yabe, 114 Ariz. 89, 90 (App. 1977).

¶9 Here, the state contends that, “[w]ith the exception of 

[Hamberlin]’s claim that A.R.S. § 17-309(A)(1) and A.A.C. R12-4-319 are 

unconstitutionally vague and overbroad, the remaining claims constitute 

various as applied challenges to the statute or to the findings of the trial 

court or the reviewing superior court,” and therefore they fall outside of 

our jurisdiction “on review of [a] direct appeal of a superior court’s review 

of a matter that originated in a justice court, as limited by A.R.S. § 22-375.” 

Specifically, it argues we lack jurisdiction over Hamberlin’s argument that 

the trial and superior courts should have read the statute and 

administrative rule to impose a culpable mental state because it is “not a 

direct attack on the face of the statute itself” and instead “challenge[s] . . .

the . . . courts’ interpretations of the statute and . . . rule at issue.” Similarly, 

the state contends Hamberlin’s arguments regarding application of the rule 

of lenity and sufficiency of the evidence are also outside of our jurisdiction. 
STATE v. HAMBERLIN

Opinion of the Court

7

¶10 We agree that we lack jurisdiction to consider Hamberlin’s 

argument that the state failed to present sufficient evidence establishing his 

“flights were directed at locating wildlife.” See § 22-375; City of Tucson v. 

Grezaffi, 200 Ariz. 130, ¶¶ 3-4 (App. 2001). However, although we generally 

lack appellate jurisdiction over challenges to lower courts’ interpretations

of statutes and rules under § 22-375, see State v. Renteria, 126 Ariz. 591, 

592-93 (App. 1979), in order to reach Hamberlin’s claim that R12-4-319 is 

vague and overbroad—a facial challenge to the rule’s validity over which 

we have jurisdiction pursuant to § 22-375(A)—we must first determine

whether the administrative rule, together with § 17-309(A)(1), creates a 

strict liability offense.

Discussion

¶11 As noted, we first address Hamberlin’s argument that the trial 

court erred in holding that a violation of R12-4-319(B) as charged under 

§ 17-309(A)(1) is a strict liability offense. We review de novo the lower 

courts’ interpretation of § 17-309(A)(1) and R12-4-319. See Guminski v. Ariz. 

State Veterinary Med. Examining Bd., 201 Ariz. 180, ¶ 10 (App. 2001) 

(interpretation of statutes and administrative rules is an issue of law).

¶12 Hamberlin was convicted under § 17-309(A)(1), which 

provides, “Unless otherwise prescribed by this title, it is unlawful for a 

person to . . . [v]iolate any provision of this title or any rule adopted 

pursuant to this title.” See also § 17-309(B) (“[A] person who violates any 

provision of this title, or who violates or fails to comply with a lawful order 

or rule of the commission, is guilty of a class 2 misdemeanor.”). His 

convictions under this statute were based on violations of R12-4-319(B), 

which was adopted pursuant to Title 17 of the Arizona Revised Statutes, see 

A.R.S. § 17-231(A)(1), and provides, in relevant part, that “a person shall 

not locate or assist in locating wildlife from or with the aid of an aircraft . . .

in a hunt unit with an open big game season.” For purposes of this section 

of the administrative code, “‘locate’ means any act or activity that does not 

take or harass wildlife and is directed at locating or finding wildlife in a 

hunt area.” R12-4-319(E).

¶13 Hamberlin argues, as he did in both the trial and superior 

courts, that a violation of R12-4-319(B) is not a strict liability offense because 

“the specific wording of the administrative rule applies only to persons 

flying with the intent to locate wildlife,” and therefore, the state was 

required to prove he had such an intent in order to obtain a criminal 

conviction against him under § 17-309(A)(1) for his alleged violation of this 

rule. Further, he asserts “[f]lying with the intent to locate wildlife is not 
STATE v. HAMBERLIN

Opinion of the Court

8

synonymous with incidental viewing of wildlife while flying an aircraft,” 

and it “cannot be illegal for pilots and passengers to look down at the 

ground while flying or for them to happen to see wildlife.”

¶14 In support of his argument, Hamberlin asserts “the 

administrative agency itself stated that the rule does not apply to 

recreational flyers,” pointing to the Arizona Game and Fish Commission’s 

public statements from the rulemaking process. In response to concerns 

about the ability of Arizona Game and Fish Department personnel to 

differentiate between recreational flyers and those hunting or locating 

game, the Commission explained, “The agency believes that it can 

adequately enforce the rule and differentiate between recreational flyers 

and those scouting game. The rule is not intended to prohibit recreational 

flying that does not negatively impact wildlife.” 6 Ariz. Admin. Reg. 226 

(2000). Hamberlin also highlights testimony at an evidentiary hearing 

before the Maricopa County Superior Court in which a Game and Fish 

Department officer stated that if Hamberlin is “just flying to view the 

scenery and he’s not locating wildlife, that would not be a violation. If he 

is locating wildlife when there is an open big game hunt in that unit, that is 

a violation.” Thus, he concludes “the Department clearly exempted 

recreational flying and limited the rule[’]s application to hunting and the 

locating of animals for hunting.” 

¶15 Additionally, Hamberlin contends Slayton, the case upon 

which both lower courts and the state relied, is distinguishable in that it 

dealt only with violations of A.A.C. R12-4-302(G), now R12-4-302(D)(2), see 

19 Ariz. Admin. Reg. 867 (2013), which prohibited hunting outside of an 

authorized unit, and § 17-309(A)(17), now § 17-309(A)(16), see 2012 Ariz. 

Sess. Laws, ch. 128, § 2, which prohibits the possession or transportation of 

unlawfully taken wildlife, rather than the administrative rule at issue in this 

case. Moreover, he argues the Slayton court’s reference to § 17-309(A)(1) as

a strict liability offense is “in[]artfully worded” because the statute “does 

not state a substantive offense but merely incorporates the Administrative 

Rules into the statutory scheme which includes criminal penalties” and “is 

always paired with an[] administrative rule when a violation of [that] rule 

is alleged.” In other words, he asserts “the Slayton court’s inclusion of

A.R.S. § 17-309(A)(1) in its opinion . . . defined all Title 17 and AAC R-12-4-

101 et. seq. as strict liability offenses despite Title 17 having at least eleven 

(11) statutes that include specific mental states” that “could be incorporated 

under” § 17-309(A)(1). Thus, Hamberlin concludes, the lower courts 

incorrectly interpreted Slayton’s holding to mean that any violation of the 
STATE v. HAMBERLIN

Opinion of the Court

9

administrative code charged under § 17-309(A)(1) “must be a strict liability 

offense.” 

¶16 Because the state contends we lack jurisdiction to address 

Hamberlin’s argument that R12-4-319(B) requires proof of a culpable 

mental state, it argues in its answering brief only that the trial and superior 

courts’ interpretations of the statute and rule at issue “were properly 

guided by” Slayton’s holding that “the legislature has specified requisite 

mental states where it wanted them and clearly expressed its intention that 

§[] 17-309(A)(1)” is a “strict liability offense[].” Below, the state argued 

Slayton’s “holding could not be any more clear or unequivocal and it is 

inescapably on point here because all counts charge [Hamberlin] with 

violations of A.R.S. § 17-309(A)(1),” and “[t]he Court of Appeals has already 

construed the language and legislative history of [this statute] for the 

benefit of the trial court and the court is bound by its holding . . . that 

offenses under A.R.S. § 17-309(A)(1) are undoubtedly strict liability 

offenses.” Further, it argued that although “the phrase ‘directed at’ in the 

definition of ‘locate’ under A.A.C. R-12-4-319([E]) implies some deliberate 

activity on the actor’s part, perhaps with some specific purpose, the same 

can be said [of] almost any strict liability offense.” It continued, “For 

example, misdemeanor driving under the influence is a strict liability 

offense that clearly requires deliberative action on the offender’s part, but 

does not require the State to prove that the offender knew he was under the 

influence or any mens rea at all.” Thus, although the state acknowledges it 

had an “evidentiary burden to prove that [Hamberlin]’s flights were indeed 

‘directed at locating or finding wildlife,’” it appears to contend such proof 

does not involve a culpable mental state.

¶17 “If a statute defining an offense does not expressly prescribe 

a culpable mental state that is sufficient for commission of the offense, no 

culpable mental state is required for the commission of such offense, and 

the offense is one of strict liability unless the proscribed conduct necessarily 

involves a culpable mental state.” A.R.S. § 13-202(B); see also A.R.S. § 13-

102(D) (unless otherwise provided or required, “provisions of this title shall 

govern the construction of and punishment for any offense defined outside 

this title”). However, an offense is one of strict liability only when the 

legislature clearly intends not to require a specific mental state. Phx. City 

Prosecutor’s Off. v. Nyquist, 243 Ariz. 227, ¶ 7 (App. 2017); see also State v. 

Williams, 144 Ariz. 487, 488 (1985) (“The requirement that in a criminal case 

the State demonstrate some degree of wrongful intent is the rule rather than 

the exception.”). “When a statute fails to specify a mental state, but the 

proscribed conduct impliedly requires one, the appropriate mental state 
STATE v. HAMBERLIN

Opinion of the Court

10

may be implied.” Slayton, 214 Ariz. 511, ¶ 12. To “resolve whether the 

offenses charged require a particular mental state, we must ascertain the 

legislature’s intent in enacting them.” Id. ¶ 13. This involves first looking

to the statute’s plain language, then to its context and history, and finally 

considering whether the offense is one that historically imposed strict 

liability. Id.; see Kimble v. City of Page, 199 Ariz. 562, ¶ 19 (App. 2001) 

(“principles of construction that apply to statutes also apply to

administrative rules and regulations”).

¶18 Looking to the plain language of R12-4-319, although this rule 

lacks an express reference to one of the four culpable mental states defined 

under A.R.S. § 13-105(10)—“intentionally,” “knowingly,” “recklessly,” and

“criminal negligence”—the proscribed conduct “necessarily involves a 

culpable mental state” in that it requires an individual’s activities to be

“directed at locating or finding wildlife in a hunt area.”3 § 13-202(B); 

R12-4-319(B), (E); see also Nicaise v. Sundaram, 245 Ariz. 566, ¶ 11 (2019) (“A 

cardinal principle of statutory interpretation is to give meaning, if possible, 

to every word and provision so that no word or provision is rendered 

superfluous.”). In the context of R12-4-319, we do not believe an individual 

can “direct” their activities at “locating or finding wildlife” absent an 

element of intent. Indeed, as Hamberlin points out, “[i]t is this ‘. . . intent 

to locate wildlife’ that differentiates innocent recreational flying from flying 

in violation of the administrative rule/statute.” Were we to interpret 

R12-4-319(B) as not requiring proof of any culpable mental state, as 

Hamberlin argues, recreational flyers who happened to see wildlife while 

flying could be charged with violating this rule, a result we do not believe 

the Game and Fish Commission intended in light of its statement that R12-

4-319 “is not intended to prohibit recreational flying that does not 

negatively impact wildlife” and can be enforced by differentiating 

“between recreational flyers and those scouting game.” 6 Ariz. Admin. 

Reg. 226; see Ariz. Health Care Cost Containment Sys. v. Bentley, 187 Ariz. 229, 

233 (App. 1996) (“Statutes must be given a sensible construction that 

accomplishes the legislative intent and which avoids absurd results.”). 

¶19 To the extent the state asserts Slayton holds that all violations 

of the administrative code charged pursuant to § 17-309(A)(1) are strict 

3We do not suggest the state is required to establish a defendant had 

a culpable mental state with regard to whether his activities were taking 

place “in a hunt unit with an open big game season” in order to prove a 

violation of R12-4-319(B) charged pursuant to § 17-309(A)(1).
STATE v. HAMBERLIN

Opinion of the Court

11

liability offenses regardless of the language contained within the applicable 

code provision, we disagree. In determining whether a violation of 

R12-4-302(G), as prohibited under § 17-309(A)(1), requires proof of a 

particular mental state, the Slayton court looked to the plain language of 

both § 17-309(A)(1), which “merely specifies that it is ‘unlawful for a person 

to . . . [v]iolate . . . any rule adopted pursuant to this title,’” and 

R12-4-302(G), which at that time provided that “[a]n individual shall use a 

tag [permit] only in the season and hunt area for which the tag [permit] is 

valid.” 214 Ariz. 511, ¶ 14 (alterations in Slayton) (quoting § 17-309(A)(1)); 

12 Ariz. Admin. Reg. 683, 685 (2006). The court concluded: 

[P]ursuant to the plain terms of § 17-309(A)(1), 

to establish a violation of this particular rule, 

the State must show merely that the alleged 

offender was hunting either out of season or 

outside the designated hunting area. There is 

nothing in the conduct proscribed by the 

statute, or the rule, that “necessarily involves a 

culpable mental state” by requiring that the 

hunter know that he is hunting out of his 

designated hunting area.

Slayton, 214 Ariz. 511, ¶ 14 (emphasis added). Thus, although we agree that 

§ 17-309(A)(1) does not by its plain language “require that the offender have 

any particular mental state to violate” it, id., we cannot say the same of the 

specific administrative code provision at issue in this case. Moreover, there 

are additional code provisions adopted under Title 17 that expressly or 

impliedly reference culpable mental states. See, e.g., A.A.C. R12-4-

303(A)(4)(d) (“A person shall not . . . [p]lace any substance in a manner 

intended to attract bears.”); R12-4-303(A)(5) (“A person shall not place, 

maintain, or use a trail camera, or images, video . . . for the purpose of 

taking or aiding in the take of wildlife . . . .”); R12-4-303(A)(7)(b) (“The use 

of edible or ingestible substances to aid in taking big game is unlawful when 

. . . [a] person knowingly takes big game with the aid of edible or ingestible 

substances placed for the purpose of attracting wildlife to a specific 

location.”).

¶20 Because we conclude R12-4-319(B) necessarily involves a 

culpable mental state, we do not reach Hamberlin’s challenge to the 

constitutionality of the statute and rule or his related argument regarding 
STATE v. HAMBERLIN

Opinion of the Court

12

the rule of lenity. As such, we lack jurisdiction to grant relief. See § 22-375; 

Okken, 238 Ariz. 566, ¶ 8.

4

Disposition

¶21 For the foregoing reasons, because we conclude a violation of 

R12-4-319(B) charged pursuant to § 17-309(A)(1) necessarily involves proof 

of a culpable mental state, we dismiss Hamberlin’s appeal for lack of 

jurisdiction.

4We initially disposed of this appeal in a memorandum decision, 

including declining to sua sponte exercise special action jurisdiction. See

State v. Perez, 172 Ariz. 290, 292-93 (App. 1992) (discretion to consider matter 

as special action). Hamberlin filed a motion for reconsideration, requesting 

that we replace the memorandum decision with a published opinion and 

that we exercise special action jurisdiction in order to reverse Hamberlin’s 

convictions. In a separate order, we are granting the motion insofar as it 

requests publication and denying the request that we exercise special action 

jurisdiction.