State of Arizona v. James Hamberlin

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

¶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

1R12-4-319(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.
2 The 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.

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 STATE v. HAMBERLIN
Opinion of the Court

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

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 STATE v. HAMBERLIN
Opinion of the Court

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

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 STATE v. HAMBERLIN
Opinion of the Court

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.

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 STATE v. HAMBERLIN
Opinion of the Court

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.

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 STATE v. HAMBERLIN
Opinion of the Court

¶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

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 STATE v. HAMBERLIN
Opinion of the Court

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

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 STATE v. HAMBERLIN
Opinion of the Court

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

9
 STATE v. HAMBERLIN
Opinion of the Court

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).

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 STATE v. HAMBERLIN
Opinion of the Court

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

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Opinion of the Court

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.

4 We 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.

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