text:
    David Bernard THOMPSON, Appellant v. STATE of Mississippi, Appellee.
    No. 2008-KA-01946-COA.
    Court of Appeals of Mississippi.
    April 27, 2010.

      Joseph A. Fernald, Jr., Brookhaven, attorney for appellant.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
   ROBERTS, J., for the Court:

¶ 1. In Count I, David Bernard Thompson was convicted of possession of more than 500 grams but less than one kilogram of marijuana with the intent to distribute within 1,500 feet of a church. In Count II, he was convicted of possession of more than ten grams but less than thirty grams of cocaine with intent to distribute within 1,500 feet of a church. For Count I, the Pike County Circuit Court sentenced Thompson to twenty years in the custody of the Mississippi Department of Corrections (MDOC) with five years suspended and fifteen years to serve followed by five years of post-release supervision. In Count II, the circuit court sentenced Thompson to fifteen years in the custody of the MDOC with five years suspended and ten years to serve followed by five years of post-release supervision. Additionally, the circuit court set the sentence in Count II to run consecutively to the sentence in Count I. Thompson appeals and claims: (1) he did not make a valid, intelligent, and knowing waiver of his right to counsel; (2) the circuit court allowed the prosecution to elicit inadmissible hearsay; (3) the circuit court infringed upon his rights to call and confront a necessary witness; and (4) the verdict is contrary to the overwhelming weight of the evidence. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Thompson’s convictions originated from a “controlled buy” of narcotics that was arranged by Officer Deska Varnado of the McComb Police Department. Prior to the buy, Officer Varnado and Agent Dan Hawn met with a confidential informant. Agent Hawn searched the confidential informant’s vehicle, and Officer Varnado searched the confidential informant. Officer Varnado then gave the confidential informant $250 to purchase narcotics. The confidential informant told Officer Varnado and Agent Hawn that he could buy drugs from someone he identified as “Head.” The confidential informant then went and purchased drugs at 1119 Nelson Avenue. The events that occurred during the buy were captured on audio and video recording equipment.

¶ 3. Officer Varnado obtained a warrant to search the house in which the buy occurred. That house turned out to be Thompson’s residence. Authorities seized the following evidence as a result of that search: (1) approximately 105 grams of marijuana in the stove; (2) approximately 408 grams of marijuana, small sandwich bags, and a “finger scale” in the closet of the master bedroom; (3) approximately 456 grams of marijuana in Thompson’s clothing; (4) approximately twenty grams of crack cocaine in the freezer or refrigerator; and (5) $2,000 under the mattress of the bed in the master bedroom.

¶ 4. Although Thompson initially obtained private counsel, during pre-trial hearings Thompson informed the circuit court that he no longer wished to be represented by his counsel. According to Thompson, he believed that his counsel was actually “helping the State.” The circuit court permitted his private counsel to withdraw and instructed Thompson to obtain a new attorney.

¶ 5. Under the impression that no one would be willing to represent him with only a couple of weeks to prepare, Thompson informed the circuit court that he wanted to represent himself. The circuit court managed to convince Thompson to allow a court-appointed attorney to participate in an advisory role at trial. Out of an “abundance of caution,” both the court-appointed attorney and the circuit court repeatedly warned Thompson of the danger that accompanied representing himself. Despite those warnings Thompson insisted on only letting the court-appointed attorney participate in an advisory role.

¶ 6. At Thompson’s trial, the prosecution called Officer Varnado. Officer Varnado testified regarding the events that led to his obtaining a warrant to search Thompson’s home. Officer Varnado also testified regarding the evidence that was seized as a result of the search warrant. The prosecution also called Paige Mills of the Mississippi Crime Laboratory, who verified that the substances found at the house were, in fact, marijuana and cocaine.

¶ 7. Thompson was convicted of both counts. Following an unsuccessful post-trial motion for a new trial, Thompson appeals.

ANALYSIS

I. WAIVER OF THE RIGHT TO COUNSEL

¶ 8. Thompson elected to represent himself. After discussing his decision with the circuit court, Thompson agreed to allow an attorney to act in an advisory role. In his first issue, Thompson claims he did not properly waive his right to counsel. Pursuant the Sixth Amendment to the United States Constitution, every criminal defendant has a right to assistance of'eounsel. U.S. Const. amend. VI. However, “implicit in this right is the right to waive counsel, thus insuring the right of a defendant to conduct his or her own defense.” Hairston v. State, 4 So.3d 403, 404 (¶ 5) (Miss.Ct.App.2009). In fact, if a circuit court refuses to allow a defendant to represent himself, a subsequent conviction may require reversal. Taylor v. State, 812 So.2d 1056, 1059 (¶ 13) (Miss.Ct. App.2001). Be that as it may, a defendant does not have a constitutional right to insist on proceeding pro se and then change his mind when he is convicted. Stated differently, a defendant may not waive assistance of counsel, represent himself at trial, and then claim he was denied assistance of counsel on a motion for a new trial or appeal. Even so, a circuit court must adequately inform a defendant of certain matters before allowing that defendant to represent himself. Thompson claims the circuit court did not adequately inform him. We disagree.

¶ 9. When a criminal defendant insists on representing himself, a circuit court must inform that defendant of his rights in accordance with the requirements of Rule 8.05 of the Uniform Rules of Circuit and County Court. Rule 8.05 provides:

When the court learns that a defendant desires to act as his/her own attorney, the court shall on the record conduct an examination of the defendant to determine if the defendant knowingly and voluntarily desires to act as his/her own attorney. The court shall inform the defendant that:
1. The defendant has a right to an attorney, and if the defendant cannot afford an attorney, the [S]tate will appoint one free of charge to the defendant to defend or assist the defendant in his/ her defense.
2. The defendant has a right to conduct the defense and that the defendant may elect to conduct the defense and allow whatever role (s)he desires to his/her attorney.
3. The court will not relax or disregard the rules of evidence, procedure or courtroom protocol for the defendant and that the defendant "will be bound by and have to conduct himself/herself within the same rules as an attorney, that these rules are not simple and that without legal advice his/her ability to defend himself/herself will be hampered.
4. The right to proceed pro se usually increases the likelihood of a trial outcome unfavorable to the defendant.
5. Other matters as the court deems appropriate.

URCCC 8.05. Once the defendant has been instructed pursuant to Rule 8.05, and the circuit court has determined that the defendant understands these matters, the circuit court must then ascertain if the defendant still wishes to proceed pro se or if the defendant desires to have an attorney to assist with his or her defense. Id. If the defendant maintains his desire to proceed pro se, the circuit court should determine whether the defendant has “exercised this right knowingly and voluntarily and, if so, make the finding a matter of record.” Id. The circuit court “may appoint an attorney to assist the defendant on procedure and protocol, even if the defendant does not desire an attorney, but all disputes between the defendant and such attorney shall be resolved in favor of the defendant.” Id.

¶ 10. Here, the circuit court not only met the requirements of Rule 8.05, but it far surpassed them. Immediately upon hearing of Thompson’s desire to represent himself, the circuit court informed Thompson that he had the right to assistance of a court-appointed attorney. The circuit court also informed Thompson that he should exercise his right to the assistance of a court-appointed attorney. However, Thompson refused to be represented by a court-appointed attorney based on his belief that a court-appointed attorney would be “helping the State.” Thompson stated he could not think of anyone in Pike County who had won a case, and he clung to the belief that court-appointed attorneys would not help criminal defendants.

¶ 11. After further discussion and encouragement by the circuit court, Thompson finally agreed to allow an attorney, Nelson Estess, assist him in an advisory role. Prior to Thompson’s trial, Estess clarified for the record and for Thompson exactly what he understood his role to be. To be precise, Estess told Thompson:

There are many pitfalls that are going to come during the course of trial. There are going to be decisions that have to be made on a split-second basis. And by the time I lean over to you to talk to you about it and try to educate you on the reasons either why to do so or why not to do so, then you haven’t had the opportunity; time has passed and your objection may [not] be contemporaneous, which is a requirement for a lot of objections during the course of trial.... But suffice it to say that while I understand you’re an intelligent man and you understand what you’re talking about, we can’t make up for you not having a law degree in the span of a couple of weeks. In all reality, it can’t be fixed without you going to law school. That’s the reason most defendants have lawyers to represent them. There are issues concerning issues of fact which should be argued before the jury and there are issues of procedure which are argued before the judge. While I understand you know the facts of your case and you’re passionate about your case, you, just like every other pro se defendant, is [sic] hampered in not having the benefits of an education that is provided you know those differences....

The circuit court also informed Thompson that proceeding pro se was not in his best interest. Specifically, the circuit court told Thompson: “Well, it is your constitutional right to represent yourself, Mr. Thompson. You can’t represent anyone else, but you can represent yourself. However, it’s also probably not a very wise decision on your part to represent yourself.”

¶ 12. The circuit court further warned Thompson of the dangers of proceeding pro se by informing him of the minimum and maximum sentences he would face if convicted. Despite continuous warnings on behalf of the circuit court and his court-appointed advisory attorney, Thompson clung to the belief that representation by an attorney was not in his best interest. “There is nothing more that the trial court could have done — the court had no right to insist on [the Appellant’s having counsel after he had refused it.” Taylor, 812 So.2d at 1060 (¶ 18).

¶ 13. As previously mentioned, while a defendant has a constitutional right to assistance of counsel, a defendant also has a constitutional right to defend himself, and the circuit court must walk a fine line to ensure no trespass of either. Brooks v. State, 835 So.2d 958, 960 (¶ 10) (Miss.Ct. App.2003). “Once the court is satisfied that such a decision has been made, the authority of the court to deny [a defendant's wish no longer exists.” Id. “The trial court, observing the demeanor of the defendant first-hand, is best suited to make those sort of subjective judgment calls.” Id. at (¶ 12). Because the record sufficiently establishes that Thompson knowingly and intelligently waived his right to counsel, we cannot find that the circuit court abused its discretion. Thus, Thompson’s first issue is without merit.

II. HEARSAY TESTIMONY

¶ 14. In his second issue, Thompson claims the circuit court allowed the prosecution to elicit inadmissible hearsay testimony from Officer Varnado. Thompson’s second issue results from the following exchange during Officer Varnado’s testimony:

Q: I’d like to bring your attention to January 7, 2007. Can you tell me about any contact you had with him on that date?
A: Yes, on that day, Logan Griffin met myself and Agent Dan Hawn at a prearranged location and we discussed buying illegal drugs in McComb. Agent Hawn searched Logan’s vehicle. I searched Logan; issued Logan $250.00 official [Southwest Mississippi Narcotics Enforcement Unit] funds, the funds being photocopied. Sent [sic] Logan out to buy drugs. He said he knew someone that he could buy drugs from. He knew them by the name of “Head.” He knew him by a nickname, called him “Head.” It actually took place at 1119 Nelson Avenue.
BY THOMPSON: Objection
BY THE COURT: What’s the basis for your objection?
BY THOMPSON: I’m only charged with a possession charge. I’m not charged with the sale of nothing, [sic] sir.
BY THOMPSON: Relevance
BY THE COURT: Oh, relevant? Alright. Well, this Court finds that the charge for today is possession with intent. As such, the intent has relevance and the Court is going to overrule your objection.
BY THOMPSON: Thank you[,] sir.

¶ 15. According to Thompson, the circuit court improperly allowed Officer Varnado to present “testimonial hearsay.” However, Thompson is procedurally barred from raising this issue on appeal, as he objected to the testimony on the ground of relevancy rather than testimonial hearsay. Mississippi law states that an objection based on one specific ground waives all other possible grounds. Swington v. State, 742 So.2d 1106, 1110 (¶ 9) (Miss.1999). Thompson may not raise his “testimonial hearsay” argument for the first time on appeal.

¶ 16. Because Thompson is procedurally barred from bringing a testimonial hearsay argument, Thompson must rely on the “plain-error” exception to the procedural bar. To establish plain error, Thompson “must prove that the inclusion of the [testimony at issue] seriously affects the fairness, integrity or public reputation of judicial proceedings.” Neal v. State, 15 So.3d 388, 403 (¶ 32) (Miss.2009) (quoting United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). “To determine if plain error has occurred, [this Court] must determine ‘if the trial court has deviated from a legal rule, whether that error is plain, clear or obvious, and whether the error has prejudiced the outcome of the trial.’” Id. (quoting McGee v. State, 953 So.2d 211, 215 (¶ 8) (Miss.2007)).

¶ 17. “The standard of review regarding the admission or exclusion of evidence is abuse of discretion.” Terrell v. State, 952 So.2d 998, 1005 (¶ 31) (Miss.Ct.App.2006). We will only find an abuse of discretion if “a defendant shows clear prejudice resulting from an undue lack of constraint on the prosecution or undue constraint on the defense.” Id. In other words, “[t]his Court shall not disturb a trial court’s decision unless it is clearly wrong.” Id.

¶ 18. Officer Varnado’s testimony was offered to show how Thompson came under investigation. “[W]e recognize that there are some circumstances where an officer can testify at trial about information provided to him by informants.” Stubbs v. State, 878 So.2d 130, 134 (¶ 10) (Miss.Ct.App.2004). The information from the confidential informant concerning where he could acquire drugs simply led Officer Varnado to investigate Thompson.

¶ 19. There was no error in allowing the testimony of Officer Varnado. Even assuming, for the sake of discussion, that there was some error, because the “weight of the evidence against the accused is overwhelming,” this testimony was not prejudicial. Clark v. State, 891 So.2d 136, 142 (¶29) (Miss.2004) (quoting Riddley v. State, 777 So.2d 31, 35 (¶ 11) (Miss.2000)). A significant amount of marijuana and cocaine was found in a house undisputed to be Thompson’s. Additionally, authorities found small plastic bags, a scale, and a large amount of money in Thompson’s home. Officer Varnado’s testimony merely showed why an investigation was commenced against Thompson. Additionally, the circuit court issued a limiting instruction to the jury. That is, the circuit court instructed the jury as follows:

the testimony of witnesses, regarding the prior drug activity of David Thompson, was offered in an effort to prove motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident, on the part of the defendant, David Thompson. You may give this testimony such weight and credibility as you deem proper under the circumstances. However, you cannot and must not consider this testimony in any way regarding whether or not this defendant is guilty or not guilty of the charges for which he is presently on trial

(Emphasis added).

¶ 20. To summarize, Thompson may not raise his “testimonial hearsay” argument for the first time on appeal. Thus, this issue is procedurally barred. However, procedural bar notwithstanding, the circuit court did not err in admitting Officer Var-nado’s testimony. It was admissible to tell the story of the investigation. Officer Var-nado testified that, on the morning of January 7, 2007, a confidential informant went to an address identified as Thompson’s residence and purchased narcotics from Thompson, who he knew as “Head.” Officer Varnado had earlier obtained a search warrant and executed it that same day. Officer Varnado’s testimony regarding those events was admissible pursuant to Mississippi Rule of Evidence 404(b) to demonstrate the intent element of both counts of possession of narcotics with intent to distribute them. Furthermore, the circuit court issued a limiting instruction to the jury. Consequently, Thompson did not suffer undue prejudice due to the admission of the testimony at issue. It follows that we find no merit to this issue.

III. RIGHT TO CALL AND CONFRONT WITNESSES

¶21. At trial, Thompson claimed that Timothy Jones, assistant district attorney in Pike County, was present during the search of his house. Thompson argued that Jones should recuse himself from prosecuting his case. The circuit court found no merit to Thompson’s argument. Thompson then sought to call Jones as a witness. The circuit court prohibited Thompson from calling Jones. According to Thompson, by refusing to allow him to call Jones as a witness, the circuit court infringed on his right to confront witnesses against him.

¶ 22. To determine whether Jones would be a necessary witness, the following colloquy took place:

BY THE COURT: Mr. Jones, as an officer of the Court, I’m going to pose a few questions to you right now. I think you have discussed on the record the fact that you were at least present on or about the time of the search in question?
BY MR. JONES: Yes, sir, during some portion of it.
BY THE COURT: Does the State have any intention of using you as a witness in this case?
BY MR. JONES: We do not, Your Hon- or.
BY THE COURT: Are there any other competent witnesses who can testify as to the search in this case?
BY MR. JONES: Yes, sir, Your Honor.
BY THE COURT: Are there any additional persons who are competent to testify to any and everything that you saw and heard that day?
BY MR. JONES: Yes, sir, Your Honor. And I am not a witness to any significant element or any significant fact of the case.
BY THE COURT: Were you simply present during the search?
BY MR. JONES: I was present, yes.
BY THE COURT: During the entire search of part of it?
BY MR. JONES: A small portion of the search. I do remember entering the residence, but largely I was outside standing next to a vehicle.

¶ 23. Although it was initially determined after this discussion that Jones would likely not be a necessary witness, the issue arose again prior to trial after Thompson chose to proceed pro se. Because he wanted to call Jones as a witness on his behalf, Thompson wanted to disqualify the assistant district attorney from prosecuting the case. Due to Thompson’s request, Jones was again questioned by the circuit court:

BY THE COURT: Mr. Jones, can you please disclose for the record the level of your involvement, level and extent of your involvement in the search of the home on the date which it is alleged in this indictment.
BY MR. JONES: I did not participate in the search at all. I was present on the premises of the search, legally outside the residence near vehicles. I did walk through the house, you know, once or twice maybe during the course of the time that I was there. I am not a witness that discovered any evidence or even observed the discovery of any evidence that was there. I was there for the purpose of providing some legal advice with regard to both criminal evidence and civil evidence that was to be seized.

¶ 24. Thompson was then allowed to question Jones on the record regarding his involvement with the search. Despite Thompson’s repeatedly questioning Jones regarding Thompson’s belief that Jones was present during the search of the home, Jones consistently stated that he was only there to provide legal advice on any potential issues that may have arisen during the search, and he did not recommend that anyone be arrested. Because Thompson did not provide evidence that Jones was present at the search to help build a case against Thompson or for any other unethical reason, the circuit court denied Thompson’s motion to remove Jones from prosecuting the case.

¶ 25. The Mississippi Supreme Court has previously held that Mississippi’s Constitution “provides that an accused of right may have compulsory process for obtaining witnesses in his favor, but this does not mean he may subpoena anybody or anything as he pleases.” Goforth v. City of Ridgeland, 603 So.2d 323, 327 (Miss.1992). Jones was not a necessary witness, as he had nothing of significance to offer at trial. Thompson was not prejudiced because he was not allowed to call Jones as a witness. Accordingly, we find no merit to this issue.

IV. WEIGHT OF THE EVIDENCE

¶ 26. In his fourth and final issue, Thompson argues that “the verdict of the jury is contrary to the weight of credible evidence.” We are mindful that, as we review the circuit court’s decision to deny a motion for a new trial, this Court “will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush v. State, 895 So.2d 836, 844 (¶18) (Miss.2005). The supreme court has further instructed that, when reviewing a circuit court’s decision to deny a motion for a new trial:

the [appellate] court sits as a thirteenth juror. The motion, however, is addressed to the discretion of the court, which should be exercised with caution, and the power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict. However, the evidence should be weighed in the light most favorable to the verdict. A reversal on the grounds that the verdict was against the overwhelming weight of the evidence, unlike a reversal based on insufficient evidence, does not mean that acquittal was the only proper verdict. Rather, as the “thirteenth juror,” the court simply disagrees with the jury’s resolution of the conflicting testimony. This difference of opinion does not signify acquittal any more than a disagreement among the jurors themselves. Instead, the proper remedy is to grant a new trial.

Id. (footnote and internal citations and quotations omitted).

¶ 27. Pursuant to the indictment against him, Thompson was charged with the following:

possession of at least five hundred (500) grams but less than one (1) kilogram of marijuana, a controlled substance, with the unlawful and felonious intent ... to distribute said marijuana, to some other person or persons ... the above-described possession of marijuana having then and there occurred within one thousand five hundred (1,500) feet of that certain Mt. Olive Baptist Church, McComb, Mississippi [and] possession of at least two (2) grams but less than ten (10) grams of cocaine, a controlled substance, with the unlawful and felonious intent ... to distribute said cocaine to some other person or persons ... the above-described possession of cocaine having then and there occurred within one thousand five hundred (1,500) feet of that certain Mt. Olive Baptist Church, McComb, Mississippi.

Thompson testified that 1119 Nelson Avenue was his residence. Authorities seized the following evidence as a result of the search of Thompson’s home: (1) approximately 105 grams of marijuana in the stove; (2) approximately 408 grams of marijuana, small sandwich bags, and a “finger scale” in the closet of the master bedroom; (3) approximately 456 grams of marijuana in Thompson’s clothing; (4) approximately 20 grams of crack cocaine in the freezer or refrigerator; and (5) $2,000 in cash under the mattress of the bed in the master bedroom. Additionally, Thompson’s home is within 1,500 feet of Mt. Olive Baptist Church.

¶ 28. Viewing the evidence in the light most favorable to the jury’s verdicts, we cannot find that either guilty verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice. Accordingly, we find no merit to this issue.

¶ 29. THE JUDGMENT OF THE CIRCUIT COURT OF PIKE COUNTY OF CONVICTION OF COUNT I, POSSESSION OF AT LEAST 500 GRAMS BUT LESS THAN ONE KILOGRAM OF MARIJUANA WITH THE INTENT TO DISTRIBUTE WITHIN 1,500 FEET OF A CHURCH, AND SENTENCE OF TWENTY YEARS WITH FIVE YEARS SUSPENDED AND FIVE YEARS OF POST-RELEASE SUPERVISION, AND COUNT II, UNLAWFUL POSSESSION OF AT LEAST TEN BUT LESS THAN THIRTY GRAMS OF COCAINE WITH THE INTENT TO DISTRIBUTE WITHIN 1,500 FEET OF A CHURCH, AND SENTENCE OF FIFTEEN YEARS WITH FIVE YEARS SUSPENDED AND FIVE YEARS OF POST-RELEASE SUPERVISION, TO RUN CONSECUTIVELY TO THE SENTENCE IN COUNT I, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE AND MAXWELL, JJ., CONCUR.


source: Caselaw Access Project

author: IRVING, J., for the Court:

license: Public Domain

text:
    Effie Darlene ADAMS (Sofikitis), Appellant v. Mitchell Steven JOHNSON and Karen Elizabeth Johnson, Appellees.
    No. 2009-CA-00803-COA.
    Court of Appeals of Mississippi.
    April 27, 2010.
    James B. Sykes III, attorney for appellant.
    David L. Morrow Jr., John R. Elliott Jr., Brendan C. Sartin, Brandon, Lindsey A. Hill, attorneys for appellees.
    Before LEE, P.J., IRVING and GRIFFIS, JJ.
   IRVING, J., for the Court:

¶ 1. This appeal concerns the custody of two minor children, Sarah and Jane Smith. In May 2007, custody of Sarah and Jane was given to John and Cynthia Smith, the children’s paternal grandparents. The Smiths were awarded custody against the wishes of Kristin Thompson, the children’s natural mother. In May 2008, Thompson filed a motion requesting that custody of the children be returned to her. The Copiah County Chancery Court denied the motion, finding that an adverse change in circumstances affecting the children had not occurred. Feeling aggrieved, Thompson appeals and asserts that the chancellor applied an erroneous legal standard in denying Thompson’s motion.

¶ 2. Finding no reversible error, we affirm the judgment of the chancery court.

FACTS

¶ 3. The Smiths were granted custody of them grandchildren in 2007 after Thompson was indicted on several felony drug charges. In order to provide a factual backdrop for this case, we quote at length from the chancellor’s 2007 judgment wherein the Smiths were granted custody:

The evidence presented clearly shows that the [Smiths] have been active in the children’s lives since their respective births. In 2000, the [Smiths] had custody of the children at the request of [Thompson] due to [Thompson’s inability to care for the children at that time. Thereafter, [Thompson] showed stability, married a gentleman who was enlisted in the military, and otherwise showed responsible behavior; therefore, the [Smiths] returned custody of the children to [Thompson] at [Thompson’s request. Subsequently, [Thompson] and the subject husband divorced and, thereafter, [Thompson] moved on several occasions.
In 2005, [Thompson] was indicted by a grand jury in Rankin County, Mississippi,] on three (3) felony counts involving controlled substances. In November 2005, the families agreed that the [Smiths] should take custody of the children. To date, the children have been in the [Smiths]’ custody.
The [Smiths] do not desire to return custody of the children to [Thompson], as they believe [Thompson] is unstable and unfit. However, [Thompson] argues that she has changed and is now stable and fit to care for the children. The laws in Mississippi favor a natural parent having custody of her children.
The Guardian Ad Litem’s report was introduced as evidence. Some of the issues raised within the report involve [Thompson]’s failure to adequately clean, feed, supervise, and bathe the children. [Thompson] denies these allegations. One teacher ... reported that she took food from the teachers’ lounge on a regular basis and gave it to [Sarah]. This evidence tips the scales in favor of believing that, indeed, [Thompson] did not clean, feed, supervise, and bathe the children, as- [the teacher] has no reason to fabricate such a story.
[Thompson]’s immorality has been made an issue. The evidence shows semi-nude and other risqué photographs of [Thompson] on her “myspace.com” profile. Also, the children are on the same web-page as these photographs of [Thompson], Posting photographs of the children on a web-page shared with semi-nude and risqué photographs shows, at a minimum, poor judgment on [Thompson]’s behalf. Numerous people use the internet to view nude photographs, and having pictures of the children on such a site invites the possibility of sexual predators viewing photographs of the children and puts the children in danger. [Thompson] could have removed the semi-nude and other risqué photographs, but did not until told to do so by her attorney. [Thompson] did not see anything inappropriate with her “myspace.com” profile.
[Thompson] engaged in sexual activity outside of marriage which resulted in her becoming pregnant sometime last year. [Sarah] has gained knowledge and understanding of a sexual device, beyond the scope of what a seven (7) to ten (10) year old should know. This sexual device was found at [Thompson’s house in a roommate’s room. [Thompson] chose the roommate, and thereby chose someone who would have such a device in close proximity to children. Also, the evidence shows that the roommate apparently had a discussion about the sexual device with [Sarah].
Evidence further shows that the children have seen [Thompson] sleeping in the same bed with men and/or women. This [c]ourt is not persuaded that these men and/or women were [Thompson’s relatives, as the children should be able to identify relatives, yet when speaking with the Guardian Ad Litem, the children simply referred to these individuals as “men” or “women.”
The children told the Guardian Ad Li-tem, at a time when they were ages eight (8) and nine (9) respectively, that they can distinguish between cigarettes and marijuana. Regardless of whether or not the children can actually make such a distinction, the fact that they are exposed to an environment that allows them to believe this is a “smoking gun.”
Looking at the numerous drug screens, there is no doubt that two are “positive.” [Thompson] has completed a drug rehabilitation program and wants the [c]ourt to believe that she has relapsed only once, such relapse occurring in August 2006. However, [Thompson] has a three (3) count indictment involving controlled substances and stands to go to jail for a potential ninety (90) years. [Thompson]’s position simply does not make sense.
⅜ ⅝ ⅝
Sex, drugs, and basic care needs are the crux of the [Smiths]’ concerns. In order for the [Smiths] to be awarded legal and physical custody of the children, this [c]ourt must find ... that “both of the parents of the child have abandoned or deserted such child or that both such parents are mentally, morally or otherwise unfit to rear and train the child.” The pattern of facts show[s] neglect of the children’s welfare. Also, the children have been exposed to matters of a sexual and drug nature that are genuine, serious dangers to the children.
This [c]ourt finds that the children have been residing with the [Smiths] since November 2005, and that the [Smiths] have provided a wholesome and stable environment. Therefore, given the totality of the evidence and circumstances, legal and physical custody of [Sarah] and [Jane] is hereby awarded unto the [Smiths], same being in the best interests of the children.

There is nothing in the record to indicate that the Mississippi Department of Human Services (DHS) was involved with the removal of the children from [Thompson]’s custody in 2007.

¶ 4. About a year after the chancellor granted the Smiths custody of the children, Thompson filed a motion alleging that a material change in circumstances had occurred. Namely, she provided evidence that she had improved her life and that many of the problems noted by the chancellor in 2007 had been corrected. Nonetheless, the chancellor declined to modify the 2007 custody order, finding in pertinent part:

In some instances, a natural[-]parent presumption exists. The natural[-]parent presumption presumes that the best interest of the child will be preserved by remaining with the natural parent. The key language regarding the natural[-]parent presumption is that the child should “remain” with the natural parent. In this case, the children are currently not in [Thompson's custody and thus cannot “remain” with the natural parent. The natural[-]parent presumption is inapplicable to this case.
... In this case, the applicable standard of proof is a material change in circumstances in the custodial home which adversely affects the children, such that it wouldn’t be in the children’s best interests that custody be changed.
[Thompson] testified that she has cleaned up her lifestyle. Evidence presented shows that [Thompson] is no longer using drugs, has removed the “myspace.com” pictures referenced in the May 2007 ^Judgment, has a good job, is making acceptable progress in the Pretrial Intervention Program, regularly attends church, has rededicated her life to Christ and been baptized, and has a nice, clean home and no roommate. However, [Thompson] is pregnant out of wedlock. [Thompson's family, friends, and neighbors testified that they are willing to assist her if she were to receive custody of the children.
[Cynthia] was diagnosed with breast cancer. Since her diagnosis, she has undergone surgery and chemotherapy treatments. [Cynthia]’s cancer is now in remission. There is no indication that her cancer has affected her ability to adequately care for the children. Testimony shows that the children are doing well in school and are happy.
[John] was laid off from his job for approximately six (6) weeks. [John] has been rehired and is earning wages equivalent to those he received prior to his being laid off. Since March 2008, [John] has consumed twelve (12) beers, which does not offend the sensibility of the [c]ourt. The [Smiths]’ grandson recently passed away[,] and both [John] and [Cynthia] are grieving.
[Thompson] must show a negative change in the custodial home, rather than a positive change in the non-custodial home. Although the [c]ourt commends [Thompson] for the positive change[s] in her behavior, no facts exist to suggest a material change in the custodial home which adversely affects the children. In this case, the standard of proof has not been met. not consented to the 2007 transfer of custody to the Smiths.

After discussing the child-support obligations of Thompson and David Smith, the children’s natural father, the chancery court ordered the DHS “to immediately release and remit to [the Smiths] any and all child[-]support monies they are holding in their account....” During the hearing on Thompson’s motion to modify custody, the chancellor noted that Thompson had

¶ 5. There is no dispute as to the facts of this case; that is to say, the Smiths do not contend that Thompson is still unfit to raise her children. The only matter at issue is whether the correct legal standard was applied during the 2008 proceedings.
¶ 6. Any additional facts will be presented during our analysis and discussion of the issue.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 7. In reviewing the decision of a chancellor, we “will not disturb the [factual] findings of [the] chancellor when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous or an erroneous legal standard was applied.” Wilburn v. Wilburn, 991 So.2d 1185, 1190 (¶ 10) (Miss.2008) (quoting Sanderson v. Sanderson, 824 So.2d 623, 625-26 (¶ 8) (Miss.2002)). However, when reviewing a question of law, we “[apply] a de novo standard of review.” Id. (citing Russell v. Performance Toyota, Inc., 826 So.2d 719, 721(¶ 5) (Miss.2002)). The only question before this Court concerns the proper legal standard that should have been applied in ruling on Thompson’s motion to modify custody; therefore, we will conduct a de novo review.

¶ 8. This Court has been unable to locate a Mississippi case dealing with the particular issue before us. Namely, once a third party has been granted custody over a natural parent due to the natural parent’s unfitness to rear a child, what standard applies if and when the natural parent attempts to regain custody of the child? Thompson urges this Court to find that the natural-parent presumption mentioned by the chancellor applies. By contrast, the Smiths ask us to find that the holding of Barnett v. Oathout, 883 So.2d 563 (Miss.2004) applies, as the chancellor found.

¶ 9. In Barnett, our supreme court found that when a parent has lost custody of a child due to the DHS’s intervention, the proper legal standard that applies when the parent seeks to regain custody of the child is “first, whether ... there was a substantial change of circumstances which adversely affected the children, where it would be in the children’s best interest[s] that custody be changed; and second, whether [the parent] showed that he had eliminated the behavior that caused the children to be taken in the first place.” Id. at 569 (¶ 12). However, the Barnett court stated that the holding in that case was limited to the particular facts of a DHS intervention: “The correct legal standard, applicable in DHS cases, was used by the chancellor....” Id. at 573 (¶29) (emphasis added). In the present case, there is no indication that the DHS was ever involved. However, we conclude that the holding of Barnett is applicable in a case such as the one before this Court, even though the DHS was not involved.

¶ 10. Regardless of the fact that the DHS was not actually involved in the case before this Court, the same showing was made regarding Thompson; that is to say, Thompson was shown to be unfit to rear her children. Her standing is exactly the same as a natural parent whose parenting draws the attention of the DHS. In fact, it may be that the only reason the DHS did not become involved in the present case is because Thompson did not have physical custody of the children at the time of her inappropriate behavior and lifestyle. Therefore, we find that the Barnett standard was properly applied in the present case. That is to say, Thompson could only regain custody of her children by showing that there was a material change in circumstances in the Smiths’ home that adversely affected the children. Thompson has made no allegation that the chancellor overlooked such a change; rather, her sole contention is that the chancellor should have presumed that custody should be placed with Thompson as a natural parent. As we have discussed, such is not the case.

¶ 11. Therefore, this contention of error is without merit. The judgment of the chancery court is affirmed.

¶ 12. THE JUDGMENT OF THE CHANCERY COURT OF COPIAH COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE AND MYERS, P. JJ., GRIFFIS, BARNES, ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR. KING, C.J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

      . Names have been changed throughout this opinion to protect the identity of the minor children.

      . Mississippi law provides a presumption that a natural parent is favored for custody of a child over any third party. Lorenz v. Strait, 987 So.2d 427, 434 (¶ 41) (Miss.2008). However, the presumption cannot be used by a natural parent who willingly relinquishes custody of a child. Grant v. Martin, 757 So.2d 264, 266 (¶ 10) (Miss.2000). The chancellor in the present case noted that Thompson contested the transfer of custody to the Smiths.


author: SMITH, Justice.

text:
    HILB, ROGAL & HAMILTON COMPANY et al. v. Werner BEIERSDOERFER. Werner Beiersdoerfer v. Hilb, Rogal & Hamilton Company et al.
    1071395 and 1071396.
    Supreme Court of Alabama.
    Sept. 25, 2009.
    Clarence L. McDorman, Birmingham, for appellants/cross-appellees Hilb, Rogal & Hamilton Company et al.
    William K. Thomas, Orange Beach; and James R. Morgan, Birmingham, for appel-lee/cross-appellant Werner Beiersdoerfer.
   SMITH, Justice.

Hilb, Rogal & Hamilton Company, Hilb, Rogal & Hamilton of Alabama, Inc., and BDF-Meadows, Inc. (collectively referred to as “the HRH corporations”), appeal from the trial court’s order remitting the damages awarded to Werner Beiersdoer-fer and against the HRH corporations. Beiersdoerfer cross-appeals from that same order. We reverse and remand.

Facts and Procedural History

This is the third time this case has been before this Court. See Beiersdoerfer v. Hilb, Rogal & Hamilton Co., 953 So.2d 1196 (Ala.2006) (“Beiersdoerfer I”); Hilb, Rogal & Hamilton Co. v. Beiersdoerfer, 989 So.2d 1045 (Ala.2007) (“Beiersdoerfer II”). The underlying facts are stated in Beiersdoerfer I, 953 So.2d at 1199-1204, and are not repeated here.

In Beiersdoerfer I, this Court affirmed the trial court’s judgment in part, reversed it in part, and remanded the cause for additional proceedings. 953 So.2d at 1210. On remand, the trial court held that it did not have jurisdiction to review the HRH corporations’ motion for a remittitur of the $1.25 million verdict in favor of Beiers-doerfer, and the HRH corporations appealed. Beiersdoerfer II, 989 So.2d at 1052-54. In Beiersdoerfer II, we held that “[t]he trial court had jurisdiction to consider the HRH corporations’ motion for a remittitur upon our remand of the case in Beiersdoerfer 989 So.2d at 1058. We reversed the trial court’s order denying the motion for a remittitur and remanded the cause for the trial court to determine “whether the damages awarded for mental anguish were excessive, and whether the HRH corporations are due a setoff for a percentage of the commissions earned by Beiersdoerfer pursuant to the contract the jury found to be in existence and enforceable.” 989 So.2d at 1058.

On remand from Beiersdoerfer II, the trial court ordered a remittitur of the compensatory damages awarded to Beiers-doerfer from $1.25 million to $900,000. The trial court also held that the HRH corporations were entitled to a setoff of 60% of the $63,000 that Beiersdoerfer apparently had earned in commissions under the contract he had with the HRH corporations. The HRH corporations appeal from the trial comb’s order, and Beiers-doerfer cross-appeals.

Discussion

The HRH corporations argue that the remittitur was inadequate; conversely, Beiersdoerfer argues that no remittitur was warranted and that the HRH corporations were not entitled to a setoff. Although the parties strongly contest those issues, they both agree that the trial court’s order must be reversed because it did not give Beiersdoerfer the option of electing a new trial in lieu of the remitti-tur.

Rule 59(f), Ala. R. Civ. P., states:

“The court may, on motion for new trial, require a remittitur as a condition to the overruling of the motion for new trial; and, the acceptance of such remittitur by the plaintiff shall not, on appeal by the defendant, prejudice the plaintiffs right to seek reinstatement of the verdict in its full amount.”

In B & M Homes, Inc. v. Hogan, 347 So.2d 1331, 1331-32 (Ala.1977), this Court held that the trial court committed reversible error in granting the defendants’ motion for a remittitur without giving the plaintiffs an opportunity to choose a new trial in lieu of the remittitur. 347 So.2d at 1332. This Court stated:

“The law is clear in Alabama that the trial court cannot direct a remittitur of damages against the plaintiffs will; such an order is void. London & Scottish Assur. Corp. v. Smith, 229 Ala. 556, 158 So. 892 (1935); W.T. Rawleigh Co. v. Hannon, 32 Ala.App. 147, 22 So.2d 603 (1945); McCormick v. Ala. Power Co., 293 Ala. 481, 306 So.2d 233 (1975); Holcombe v. Whitaker, 294 Ala. 430, 318 So.2d 289 (1975). To arbitrarily reduce the amount of damages deprives the plaintiff of his constitutional right to a jury. [11] Wright & Miller, [Federal Practice and Procedure: Civil § 2815 (1973) ].”

347 So.2d at 1332.

Addressing the same issue in McCormick v. Alabama Power Co., 293 Ala. 481, 306 So.2d 233 (1975), this Court stated:

“In cases decided before the adoption of the new rules of civil procedure, this Court, as well as the then Court of Appeals, has held:
“ ‘... We know of no authority in law which permits a trial court to direct a remittitur of damages against the will of the party recovering the same. Therefore the order of Judge Snyder, directing the plaintiff to enter a remittitur of damages in the sum of $500 against the objection and exception of plaintiff, was unauthorized and void.’ London & Scottish Assur. Corporation v. Smith, 229 Ala. 556, 158 So. 892 (1935). (Emphasis supplied [in McCormick].)
“ ‘The application of the principal of a remittitur or “additur” is based on the privilege of consent to the reduction or addition. In the absence of an agreement by the plaintiff in case of a remittitur and the defendant in case of additur, the court is not permitted to force the alteration of the amount found by the verdict of the jury, but in which event may grant a motion for new trial....’ W.T. Rawleigh Co. v. Hannon, 32 Ala.App. 147, 22 So.2d 603 (1945). (Emphasis supplied [in McCormick ].)
“The federal decisions construing Rule 59, F[ed]. R. Civ. P., reach the same conclusion. These decisions may be summarized as follows:
“ ‘Where the amount of the damages are at large and the plaintiff refuses to remit, the court may not decrease the amount of the verdict itself and order judgment entered for the lesser amount, as this violates the Seventh Amendment’s prohibition against a reexamination of the facts-’ 6A Moore’s Federal Practice, § 59.05(3).
“ ‘There is, nevertheless, a practice, now sanctioned by long usage, by which the court may condition a denial of the motion for a new trial upon the filing by the plaintiff of a remittitur in a stated amount. In this way the plaintiff is given the option of either submitting to a new trial or of accepting the amount of damages that the court considers justified. This practice goes back to the opinion of Justice Story sitting at circuit in 1822 in Blunt v. Little [3 F. Cas. 760, 761-62 (C.C.Mass.1822) ]. A number of Supreme Court decisions accepted Justice Story’s view uncritically and the power of the court to set a remittitur has been uniformly accepted by the lower federal courts.’ (Footnotes omitted [in McCormick ].) 11 Wright & Miller, Federal Practice and Procedure: Civil, § 2815, p, 100.
“... Although no reason is given in the ‘Committee Comments’ as to why subsection (f) was added to Rule 59, it would appear that it was to clearly establish the rule that acceptance of a remittitur does not prejudice the plaintiffs raising, on appeal by defendant, the right to have the original verdict reinstated in the full amount, in contradistinction to the former Alabama case law.
“ ‘Under prior Alabama law, the verdict-winner who agreed to a remit-titur in an effort to stave off a new trial could not urge affirmance of the original verdict if the defendant appealed after plaintiffs acceptance of a remittitur. Tennessee Valley Sand & Gravel Co. v. Pilling, 35 Ala.App. 237, 47 So.2d 236 (1950), cert. den. 254 Ala. 10, 47 So.2d 245 (1950). Rule 59(f) repudiates this view and allows the verdict winner, as appellee, to press for reinstatement of the verdict in its full amount after having accepted a remittitur.’ Lyons, Alabama Practice, Rules of Civil Procedure Annotated, § 59.3.
“It is thus we conclude that, under our Rule 59(f), a remittitur gives the plaintiff a choice. He can accept the remittitur or he can refuse to accept the remittitur and suffer a new trial. If he accepts the remittitur, and defendant appeals, he is not prejudiced in his right to raise the issue that the verdict should be reinstated in the full amount.... However, the trial judge cannot enter a judgment for an amount less than that awarded by the jury, absent consent of plaintiff by way of remittitur under Rule 59(f), in light of the issues and evidence here.”

293 Ala. at 483-84, 306 So.2d at 235-36.

Because the trial court in the present case did not give Beiersdoerfer the option of electing to have a new trial in lieu of the remittitur, the trial court’s order is due to be reversed. B & M Homes, supra.

Conclusion

The trial court’s order is reversed, and the causé is remanded.

1071395 — REVERSED AND REMANDED.

1071396 — REVERSED AND REMANDED.

COBB, C.J., and LYONS, WOODALL, STUART, BOLIN, PARKER, MURDOCK, and SHAW, JJ., concur.

      . As noted, the parties agree that the trial court's order must be reversed. However, the HRH corporations suggest that we retain jurisdiction over these appeals while the cause is on remand to the trial court. The HRH corporations state that if the trial court gives Beiersdoerfer the option of electing a new trial and Beiersdoerfer takes that option, these appeals may then be dismissed as moot. However, if Beiersdoerfer were to elect not to accept the option of a new trial, then, the HRH corporations contend, we could address the remaining issues presented in these appeals regarding the trial court’s order.
      The HRH corporations have not cited any authority to support their assertion that we should retain jurisdiction over these appeals pending further proceedings in the trial court, and we are not aware of any such authority.


author: BOLIN, Justice.

text:
    Steven L. NORTHINGTON et al. v. ALABAMA DEPARTMENT OF CONSERVATION AND NATURAL RESOURCES et al.
    1071429.
    Supreme Court of Alabama.
    Sept. 25, 2009.

      Thomas G. Mancuso, C. McDowell Crook, Jr., and Felicia A. Long of Haskell Slaughter Young & Gallion, LLC, Montgomery; and Frank M. Wilson, Montgomery, for appellants.
    William A. Gunter, deputy legal counsel, for appellees Department of Conservation & Natural Resources and Commissioner M. Barnett Lawley.
    David R. Boyd, Robin G. Laurie, and Kelly F. Pate of Balch & Bingham, LLP, Montgomery, for appellee Alabama Power Company.
    Robert D. Segall of Copeland, Franco, Screws & Gill, P.A., Montgomery, for ap-pellees Richard Bronson, David Heinzen, David L. French, and M.R. Taffet.
   BOLIN, Justice.

This appeal involves the constitutionality of Act No. 2006-398, Ala. Acts 2006, codified at § 33-6A-3.1, Ala.Code 1975, effective July 1, 2006 (hereinafter referred to as “the Act”), which prohibits certain marine vessels on three impoundment lakes in Alabama — Lake Martin, Weiss Lake, and Lake Harris (also known as Lake Wedow-ee). All three lakes are hydroelectric-impoundment lakes created and owned in whole or in part by Alabama Power Company.

Facts and Procedural History

The Act, which was signed into law by Governor Bob Riley on April 17, 2006, prohibits the following vessels on Lake Martin, Weiss Lake, and Lake Harris: (1) “beginning July 1, 2007, the use of houseboats shall be prohibited”; (2) “[bjeginning October 1, 2006, the use of recreational vessels greater than 26 feet 11 inches in length and rated by the manufacturer for or capable of a top speed in excess of 60 miles per hour shall be prohibited” (i.e., “high performance” or “go-fast” boats such as “cigarette boats”); and (3) “beginning July 1, 2007, the use of recreational vessels greater than 30 feet 6 inches in length, as determined by the straight line distance between the ends of the boat, excluding bowsprits, outboard motor brackets, rudders, or other attachments, shall be prohibited.” The Alabama Department of Conservation and Natural Resources (hereinafter “DCNR”) promulgated regulations to implement the Act, which provide further certainty in measuring the prohibited vessels: “[T]he length of vessels shall be determined by measuring the straight line distance from the bow to the lowest part of the transom, excluding bowsprits, outboard motor brackets, rudders, or other attachments, and excluding any swim platforms whether molded into the hull construction or otherwise.” Ala. Admin. Code (Department of Conservation and Natural Resources), Rule 220-6-.55(d).

The Act also provides that some otherwise prohibited vessels are “grandfathered” under the Act and that certain vessels shall be excluded from the listed prohibitions: Houseboats can remain in use if they (1) are inspected annually, (2) were licensed and in use on the effective date of the Act, (3) meet all applicable standards for sewage disposal, and (4) are moored at a marina or other facility with an approved means of sewage disposal. § 33-6A-3.1(e); Ala. Admin. Code (Department of Conservation and Natural Resources) Rule 220-6-.55(b)(l), (b)(2), and (c). Houseboats are (1) a residence boat as that term is defined in the preexisting statute (§ 33-6A-l(6), Ala.Code 1975), and (2) “any recreational vessel that constitutes a fully equipped dwelling similar in content to a mobile home, with a marine sanitation device, galley, and sleeping quarters.” § 33-6A-3.1 (a)(1). A grandfathered vessel may be operated only on the lake where it was already in use and requires a yearly permit. § 33-6A-3.1(e).

On July 27, 2006, boat owners Steven L. Northington, Richard H. Miller, Jeff Old-nettle, Allen D. Plott, Todd Trolinger and Melissa Trolinger, as well as Nelems Marine, Inc. (hereinafter referred to collectively as “the challengers”), sued DCNR, as well as two of its senior officials, M. Barnett Lawley and M.N. Pugh. In their complaint, the challengers claimed that the Act arbitrarily created classifications that violated the equal-protection guarantees and Due Process Clauses of the United States Constitution and Alabama Constitution of 1901. The challengers further complained that the Act was void because it was unconstitutionally vague. Alabama Power Company, as well as other property owners on the three lakes — Richard Bronson, David Heinzen, David L. French, and M.R. Taffet — subsequently intervened as defendants in the case. Following an ore tenus hearing, the trial court entered a judgment, declaring that the Act did not violate the equal-protection guarantees and Due Process Clauses and that it was not unconstitutionally vague. The challengers filed a motion to alter, amend, or vacate the judgment. Following a hearing, the trial court denied that motion, and this appeal followed. On appeal, the challengers argue that the classifications in the Act are arbitrary because, they say, those classifications do not further a legitimate governmental purpose and cannot be rationally related to any reasonably conceivable governmental purpose. They also argue on appeal that the Act is unconstitutionally vague.

Standard of Review

The trial court’s judgment was entered after a bench trial, at which the court heard ore tenus evidence. “ ‘When a judge in a nonjury case hears oral testimony, a judgment based on findings of fact based on that testimony will be presumed correct and will not be disturbed on appeal except for a plain and palpable error.’ ” Smith v. Muchia, 854 So.2d 85, 92 (Ala.2003) (quoting Allstate Ins. Co. v. Skelton, 675 So.2d 377, 379 (Ala.1996)). This Court’s review of constitutional challenges to legislative enactments is de novo. Board of Water & Sewer Comm’rs v. Hunter, 956 So.2d 403 (Ala.2006). In McInnish v. Riley, 925 So.2d 174, 178 (Ala.2005), this Court further stated:

“[T]he standard of review of the trial court’s judgment as to the constitutionality of legislation is well established. This Court ‘ “should be very reluctant to hold any act unconstitutional.” ’ Ex parte D.W., 835 So.2d 186, 189 (Ala.2002)(quoting Ex parte Boyd, 796 So.2d 1092, 1094 (Ala.2001)). ‘[ijn passing upon the constitutionality of a legislative act, the courts uniformly approach the question with every presumption and intendment in favor of its validity, and seek to sustain rather than strike down the enactment of a coordinate branch of the government.’ Alabama State Fed’n of Labor v. McAdory, 246 Ala. 1, 9, 18 So.2d 810, 815 (1944) (emphasis added). This is so, because ‘it is the recognized duty of the court to sustain the act unless it is clear beyond reasonable doubt that it is violative of the fundamental law.’ 246 Ala. at 9, 18 So.2d at 815 (emphasis added).”

Moreover, the rational-basis test is the proper test to apply to either a substantive-due-process challenge or an equal-protection challenge when neither a suspect class nor a fundamental right is involved. Gideon v. Alabama State Ethics Comm’n, 379 So.2d 570 (Ala.1980). “Under the rational basis test the Court asks: (a) Whether the classification furthers a proper governmental purpose, and (b) whether the classification is rationally related to that purpose.” 379 So.2d at 574.

The law is clear that a party attacking the constitutionality of a statute has the burden of negating every conceivable or reasonable basis that might support the constitutionality of the statute. Thom v. Jefferson County, 375 So.2d 780 (Ala.1979). Moreover, this Court will uphold a statute as long as the statute implements any rational purpose. State v. Colonial Pipeline Co., 471 So.2d 408 (Ala.Civ.App.1984). “[A] statutory discrimination will not be set aside if any set of facts reasonably may be conceived to justify it.” 471 So.2d at 412. “Unless clearly and patently arbitrary, oppressive and capricious on its face, such classification is not subject to judicial review. Mere inequality under such classification is not sufficient to invalidate a statute.” State v. Spann, 270 Ala. 396, 400, 118 So.2d 740, 743 (1959).

With regard to challenging a statute as impermissibly vague, the United States Supreme Court has stated:

“A statute can be impermissibly vague for either of two independent reasons. First, if it fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits. Second, if it authorizes or even encourages arbitrary and discriminatory enforcement. Chicago v. Morales, 527 U.S. 41, 56-57 (1999).”

Hill v. Colorado, 530 U.S. 703, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000).

Discussion

In addressing the due-process and equal-protection challenges, this Court must presume that the Act is valid and construe the Act in favor of its constitutionality. Mclnnish, supra. In its order, the trial court noted that “[l]imiting certain boats from certain lakes can positively affect the use, enjoyment, and overall atmosphere, of those lakes” and that it is “reasonable for a state to seek to reserve particular waterways for particular purposes and to foster particular atmospheres.” The trial court further noted that the Act may have been rationally related to any of the following goals: (1) zoning — protecting the public’s use and enjoyment of the lakes that are the subject of the Act by reducing congestion and noise, enhancing the value of lake property, and ensuring the general peace and tranquility; (2) public safety — reducing the potential harm arising from a collision between a large boat and a small boat and reducing the likelihood of improper usage or malfunction of marine-sanitation devices, like those often found on houseboats; and (3) environmental — protecting the shoreline from erosion and ensuring water quality by limiting certain boats that can produce large wakes capable of washing over seawalls and onto adjoining land thereby causing erosion and pollution. The trial court’s determination in this regard is supported by the record. Any of these possible goals would support enactment of the Act. The trial court also took notice that the State of Georgia already prohibits vessels longer than 30 feet 6 inches from certain of its waterways. See Ga.Code Ann., § 52-7-13(g)(l) and (h)(1).

Evidence was presented indicating that certain issues were major concerns on Alabama’s impoundment lakes, i.e., protection of the integrity and quality of life of residents whose property adjoins the lakes, public-safety issues, declining property values caused by congestion on the waterways, etc. There was evidence indicating that most high-performance boats are longer than 26 feet 11 inches and have the capability to attain speeds in excess of 60 miles per hour. One classification of vessels in the Act is vessels longer than 30 feet 6 inches, which captures a majority of heavy vessels that produce large wakes capable of washing over seawalls and onto adjoining land, thereby causing erosion and pollution. Limiting boats of a certain size on the lake can also address the potential safety concerns associated with the wakes of those boats and the potential destructive force in the event such a boat collides with a smaller boat. Also, there was evidence indicating that improper use of a marine-sewage-disposal device on a houseboat can cause human waste to be released into the lake. The three lakes affected by the Act — Lake Martin, Weiss Lake, and Lake Harris — are actually very close to the Georgia line and concern was expressed that Georgia residents who own boats prohibited by a similar Georgia statute could very well migrate to these three impoundment lakes in Alabama, thereby causing additional congestion.

The challengers seemingly imply that a court hearing a constitutional challenge has an obligation to examine the legislature’s actual motivations in passing an act. Specifically, they argue that the real intent of the legislature in enacting the Act was to “protect Alabama Power’s enormous real estate interests by enacting boat restrictions designed to attract upscale real estate developers to Lakes Martin, Harris, and Weiss.” The challengers’ argument in this regard is inapplicable to the well settled rational-basis analysis. The fundamental inquiry in a rational-basis analysis “is concerned with the existence of a conceivably rational basis, not whether that basis was actually considered by the legislative body.” Haves v. City of Miami, 52 F.3d 918, 922 (11th Cir.1995). In other words, the actual motivations of the legislature are irrelevant.

The record in this case is voluminous, and there is an overabundance of evidence to support the trial court’s conclusion that the Act furthers one or more conceivable legitimate governmental purposes and that the classifications in the Act are rationally related to those purposes. Accordingly, we conclude that the Act is neither arbitrary nor discriminatory and that it does not violate either the equal-protection guarantees or the Due Process Clauses of the United States Constitution and the Alabama Constitution.

The challengers also argue that the Act is unconstitutionally vague because, they say, the Act does not provide adequate standards for measuring and enforcing the speed capability of a boat. Assuming that the challengers have standing to challenge the Act, we conclude that they have failed to introduce any persuasive evidence to support their contention that the Act is vague.

In Jansen v. State, 273 Ala. 166, 170, 137 So.2d 47, 50 (1962), this Court stated:

“[C]ourts may declare legislative enactments to be inoperative and void for indefiniteness or uncertainty in meaning. But such power should be exercised only when a statute is so incomplete, so irreconcilably conflicting, or so vague or indefinite, that it cannot be executed, and the court is unable, by the application of known and accepted rules of construction, to determine, with any reasonable degree of certainty, what the legislature intended.”

After reviewing the plain language of the Act, as well as the testimony in the record, we conclude that the Act contains sufficient notice to the public regarding the type of marine vessels that are prohibited on the three impoundment lakes: houseboats; recreational vessels greater than 26 feet 11 inches in length and rated by the manufacturer for, or capable of, a top speed in excess of 60 miles per hour; and recreational vessels greater than 30 feet 6 inches in length. The Act defines a “houseboat,” and it further provides how the length of boats should be measured. There is also testimony in the record regarding how the speed capability of a boat is determined. As the trial court noted:

“The speed capability of a vessel is readily ascertainable. Often, the manufacturers provide the vessel’s speed capability to the boat purchaser — i.e., manufacturer-rated speed. Further, a simple GPS [Global Positioning System] device, which may be handheld, is a common way by which a boat operator can determine his or her vessel’s speed capability.”

The testimony in the record suggests that GPS devices do in fact measure speed with a sufficient degree of accuracy to determine the speed capability of a boat. DCNR Lieutenant Erica Shipman testified that a boat owner can determine the speed of his or her boat using a GPS device. Robert Nelems, the owner of challenger Nelems Marine, Inc., testified that “[a] lot of the boats now have built-in GPS, which is dead-on accurate.” The evidence suggests that the challengers are well aware of whether their boats fall within the purview of the Act. A statute will be declared vague “only if a person of ordinary intelligence, exercising common sense, can derive no rule or standard at all from the statute’s language.” Friday v. Ethanol Corp., 539 So.2d 208, 213 (Ala.1988). We conclude that the Act in this case is not so uncertain in meaning, or so incomplete, or so conflicting, or so vague or indefinite, as to warrant its invalidation. Jansen, supra. We further conclude that the prohibitions contained in the Act are understandable by a person of ordinary intelligence and that the Act does not authorize or encourage arbitrary and discriminatory enforcement.

We note that the challengers also argue that the Act on its face grants a “special privilege” in violation of § 22 of the Alabama Constitution of 1901, which, they say, prohibits the legislature from “making ... grants of special privileges” to individuals or corporations. Specifically, they argue that the Act was meant to benefit economically only Alabama Power Company and investors interested in pursuing highly profitable upscale real-estate developments on the three impoundment lakes at the expense of the rights of Alabama boat owners. After thoroughly reviewing the voluminous record, this Court concludes that the challengers never argued this point before the trial court; they, therefore, cannot raise it for the first time on appeal. Head v. Triangle Constr. Co., 274 Ala. 519, 150 So.2d 389 (1963).

The judgment of the trial court is affirmed.

AFFIRMED.

COBB, C.J., and LYONS, WOODALL, STUART, SMITH, PARKER, and SHAW, JJ., concur.

      . An impoundment lake is a lake created by a dam that does not include a lock for travel.

      . The trial court noted in its opinion that the challengers and DCNR had reached an agreement that DCNR would not enforce the Act pending resolution of this action.

      . See Board of Water & Sewer Commissioners, 956 So.2d at 418. (”[I]n order to challenge a statute on the basis of vagueness, the challenger must first have standing to do so.” "[A] litigant has no standing to assert a vagueness claim against a statute if the litigant’s conduct is clearly proscribed by that statute.”).