concurring in part and dissenting in part: I concur in the holding that K.S.A. 1998 Supp. 21-3516 is not unconstitutional and that there was sufficient evidence underlying all of Edward N. Cobum, Sr.’s convictions. I dissent from the majority’s holding that the trial court committed reversible error in denying Cobum’s motion to sever the sexual exploitation of a child count from the six counts of aggravated indecent liberties with a child.
Introduction
The trial judge who ruled on the severance motion prior to the retrial of this case was the same judge who presided over Cobum’s original trial. Unlike the typical situation wherein a trial judge mies on a pretrial severance motion based only on proffers of evidence and arguments of counsel, this judge had the benefit of being fully advised of both parties’ case theories and arguments, in addition to having observed the witnesses, listened to their testimony, and reviewed the documents and photographs from the prior trial. As a result, the trial judge was in a unique position to evaluate and properly conclude that the sexual exploitation charge was of a *1070“same or similar character” to the aggravated indecent liberties charges under K.S.A. 22-3202(1).
My colleagues, on the other hand, upon review of the record on appeal, find as a matter of law that the trial court improperly held the sexual exploitation charge and aggravated indecent liberties charges were of the same or similar character under K.S.A. 22-3202(1), and that due to the resulting prejudice to Cobum, the trial court abused its discretion in denying severance. These findings will be addressed individually.
Crimes of the Same or Similar Character
The majority concedes the similarities among all the crimes in this case: (1) the crimes involved minors; (2) they involved sexual gratification; (3) they were of a lewd nature; and (4) some of the crimes occurred at Cobum’s residence. Still, the majority concludes that “the similarities seem to stop there.” 38 Kan. App. 2d at 1044-45. I disagree.
The fundamental similarity in the character of the crimes may be found in our statutes. Sexual exploitation of a child (K.S.A. 1998 Supp. 21-3516) and aggravated indecent liberties with a child (K.S.A. 21-3504) are both categorized as sex offenses. Most importantly, a review of the elements of proof of both types of sex offenses establishes their same or similar character.
As set forth in Instruction No. 15, in order for the jury to convict Cobum of sexual exploitation of a child the State was required to prove:
“1. That the defendant possessed computer hardware or other computer related equipment or computer generated image that contains or incorporates in any manner, a photograph in which a visual depiction of a child under 18 years of age is shown or heard engaging in sexually explicit conduct; and
“2. That the defendant did so with the intent to arouse and satisfy the sexual desires or appeal to the prurient interest of the defendant, the child, or another; and
“3. That this act occurred between the 1st day of December, 1998 and the 9th day of April, 2000, in Wyandotte County, Kansas.”
See K.S.A. 1998 Supp. 21-3516; PIK Crim. 3d 57.12-A (1998 Supp.).
*1071As set forth in Instructions Nos. 9, 10, 11, 12, 13, and 14, in order for the jury to convict Cobum of aggravated indecent liberties with a child the State was required to prove:
“1. That the defendant fondled or touched the person of [S.W or J.W.] in a lewd manner, with intent to arouse or satisfy the sexual desires of either the child or the defendant, or both;
“2. That at the time of the act, [S.W. or J.W.] was a child under the age of 14; and
“3. That this act occurred between the 1st day of [November or December], 1998 and the 1st day of March, 2000, in Wyandotte County, Kansas.”
See K.S.A. 21-3504; PIK Crim. 3d 57.06 (1998 Supp.).
As is plain from the statutory elements, both types of sex offenses prohibit a defendant’s indecent conduct involving a child with the intent to arouse or satisfy the sexual desires of the child, and/or the defendant. K.S.A. 1998 Supp. 21-3516, PIK Crim. 3d 57.12-A (1998 Supp.); K.S.A. 21-3504; PIK Crim. 3d 57.06 (1998 Supp.). As enacted by the legislature, the essence of both types of sex offenses is the same — to prohibit lewd conduct perpetrated against children.
In the present case, there were also five similar factual characteristics proving the elements of the sexual exploitation charge and aggravated indecent liberties charges.
First, the victims were young girls. As noted by the majority, the sexual exploitation charge involved evidence that Cobum visited child pornography sites and images of naked girls were found in the “My Documents” folder of the computer. With regard to the aggravated indecent liberties charges, S.W. was a young girl, 9 to 10 years old, at the time of the offenses. Her sister, J.W., was a young girl, 12 to 13 years old, at the time of the offenses.
Although my colleagues observe that S.W. and J.W. were not the same children as those depicted in the pornography, our Supreme Court has never required victims in multiple counts to be identical. To the contrary, our Supreme Court has approved a trial court’s joinder or refusal to sever multiple counts involving different victims listed in different counts of a single charging document. See State v. Gaither, 283 Kan. 671, 686-88, 156 P.3d 602 (2007) (two separate murder victims); State v. Bunyard, 281 Kan. 392, *1072396-404, 133 P.3d 14 (2006) (three separate rape victims); State v. Plaskett, 271 Kan. 995, 1018-20, 27 P.3d 890, (2001) (three separate aggravated incest victims).
My colleagues’ next concern that the ages of S.W. and J.W. were not identical to the ages of the children depicted in the pornography seems to be a distinction without a difference. What matters is that all the victims in all the counts of the information shared one important similar characteristic — -they were all young girls.
Finally, the majority distinguishes the character of the two types of sex offenses by asserting that, unlike the aggravated indecent liberties charges which involved “specific child victims,’’ the victim of the sexual exploitation charge was “society in general.” 38 Kan. App. 2d at 1045. The crimes of sexual exploitation of a child and aggravated indecent liberties with a child, however, are found in Article 35 which catalogues sex offenses involving individual victims. Crimes against public morals, including promoting obscenity, K.S.A. 21-4301, are classified in Article 43. Moreover, the gravamen of K.S.A. 1998 Supp. 21-3516 is found in its title: “Sexual exploitation of a child.” The naked young girls whose pictures were downloaded by Cobum on his computer, although anonymous, were specific child victims of Cobum’s sexual exploitation.
The second similar characteristic of both types of sex offenses is the prohibited conduct — lewd behavior. Coburn engaged in lewd behavior both by touching S.W. and J.W. and by accessing and possessing sexually explicit images of young girls. The majority counters that “[u]nlike the aggravated indecent liberties charges, the sexual exploitation charge did not involve any inappropriate touching.” 38 Kan. App. 2d at 1045. Again, this distinction is not dispositive. As the Supreme Court observed in Bunyard: “Crimes against persons, particularly including sex crimes and crimes against children, have variances in the facts. No such crime is a clone of another.” 281 Kan. at 401. Whether one views young girls in sexually explicit poses on a computer screen or actually engages in sexually explicit conduct with young girls, the character of die offense is similar — it is lewd behavior that victimizes young children.
Third, Cobum’s motive or intent as to both types of sex offenses was identical. With regard to the sexual exploitation charge, it is *1073understatement to observe that an individual who possesses lewd images of young girls and visits child pornography web sites featuring “teen eroticism,” “little virgins,” and “nude teen Lolitas” has a motive or intent to “arouse or satisfy the sexual desires or appeal to the prurient interest of the offender.” See K.S.A. 1998 Supp. 21-3516(a)(2). As a panel of our court determined in the first trial, State v. Coburn, 32 Kan. App. 2d 657, 667, 87 P.3d 348, rev. denied 278 Kan. 848 (2004), “[t]he vulgar names of the websites had probative value for this element.” Similarly, Cobum’s inappropriate touching of the genital, chest, and other private areas of S.W. and J.W., while purportedly wrestling with them, was surely probative of an “intent to arouse or satisfy the sexual desires ... of the offender.” See K.S.A. 21-3504(a)(3)(A).
Fourth, the location of the crimes was another similar characteristic. The sexual exploitation offense occurred in the privacy of Rose Cobum’s home (Cobum’s wife and the grandmother of S.W. and J.W.) while several of the incidents of aggravated indecent liberties also occurred at her residence.
Fifth, all the crimes were alleged to have occurred during the same 17-month time period — November 1, 1998 through April 1, 2000.
In addition to the sexual exploitation charge and aggravated indecent liberties charges sharing similar elements of proof and similar case facts, both types of sex offenses also required “the same mode of trial, the same kind of evidence, and the same kind of punishment.” See Gaither, 283 Kan. at 686-87.
With regard to mode of trial, Cobum had a constitutional and statutory right to a jury trial as to both types of sex offenses because they are felonies for which imprisonment of more than 6 months is authorized. See Kansas Constitution Bill of Rights § 5; K.S.A. 22-3403; City of Wichita v. Bannon, 37 Kan. App. 2d 522, 525, 154 P.3d 1170 (2007).
The same kind of evidence — testimonial, documentary, direct and circumstantial — was presented at trial by the State and Cobum regarding both types of sex offenses. Of particular significance, the State presented seven witnesses — S.W., J.W., Rose Cobum, C.W. (the girls’ mother), K.F. and L.C. (girlfriends of S.W. and J.W.), *1074and Kansas City, Kansas Police Captain Alexander Krump — who provided testimony about both the sexual exploitation charge and the aggravated indecent liberties charges. Our Supreme Court has noted common witnesses in upholding denial of severance claims when a witness provided testimony to prove multiple offenses joined in one charging document. See Gaither, 283 Kan. at 687 (one common witness); State v. Barksdale, 266 Kan. 498, 508-10, 973 P.2d 165 (1999) (one common witness). Finally, Cobum testified on his own behalf denying any culpability for any of the sex offenses.
With regard to the same kind of punishment, the legislature has established significant penalties of incarceration for both sexual exploitation of a child (severity level 5 person felony) and aggravated indecent liberties with a child under 14 years of age (severity level 3 person felony). K.S.A. 1998 Supp. 21-3516(c); K.S.A. 21-3504(c).
In summary, my de novo review of the elements of proof for the sexual exploitation charge and aggravated indecent liberties charges, the case facts establishing those elements of proof, and the related considerations of mode of trial, kind of evidence, and the kind of punishment, convince me that “the district court properly concluded that a condition precedent had been met.” Gaither, 283 Kan. 671, Syl. ¶ 4. In other words, the crimes of sexual exploitation of a child and aggravated indecent liberties with a child committed by Cobum were of the same or similar character to be joined under K.S.A. 22-3202(1).
Prejudice Analysis
I have two concerns regarding the majority’s holding that the trial court abused its discretion because Cobum was prejudiced by the trial court’s denial of severance. First, my colleagues have blurred our Supreme Court’s long-standing mies of prejudice analysis in severance cases. Second, my review of the record convinces me that Cobum has failed to prove sufficient prejudice to merit reversible error.
My colleagues posit that “when the misjoinder of charges has occurred, some prejudice almost always results. In other words, *1075when joinder is improper, some prejudice is shown from the very fact of the joinder.” 38 Kan. App. 2d at 1050. This is a new statement of law, without precedent in Kansas, that is not helpful to an analysis of whether Cobum has met his burden of proving reversible error. As the majority ultimately concedes, Bunyard establishes the standard that “error due to misjoinder requires reversal only if the error had a ‘substantial and injurious effect or influence in determining the jury’s verdict.’ ” 281 Kan. at 402 (quoting United States v. Lane, 474 U.S. 438, 449, 8 L. Ed. 2d 814, 106 S. Ct. 725 [1986]).
Of more concern is my colleagues’ statement that “a K.S.A. 60-455 analysis is a relevant tool to use in determining whether prejudice results from the joinder of the charges.” 38 Kan. App. 2d at 1051. This is an inexact formulation derived from Barksdale, 266 Kan. at 510: “[W]here the evidence of crimes joined for trial would have been admissible under K.S.A. 60-455 in a separate prosecution, the defendant is unable to demonstrate any prejudice when the crimes are tried in a single trial. [Citation omitted.]” From this precedent the majority states, without authority, the notion: “Inversely, this rule implies that a defendant may be able to show prejudice when crimes are tried in a single trial and the evidence of the crimes joined for trial would have been inadmissible under K.S.A. 60-455 in a separate prosecution.” 38 Kan. App. 2d at 1052.
Inconsistently, my colleagues then cite Bunyard: “ ‘Kansas case law and the provisions of K.S.A. 22-3202(1) make it clear that joinder is not dependent upon the other crimes being joined meeting the admissibility test set forth in K.S.A. 60-455.’ [Citations omitted.]” 281 Kan. at 400 (quoting Barksdale, 266 Kan. at 510). In the final analysis, aside from this appropriate citation to Bunyard, the majority’s conflation of K.S.A. 60-455 and severance jurisprudence is at variance with our Supreme Court’s most recent pronouncement in Gaither: “Applying the hmitations of K.S.A. 60-455 to the joinder of charges would effectively nullify the application of K.S.A. 22-3202(1) when the crimes charged are of the same or similar character.” 283 Kan. at 688 (agreeing with Barksdale).
Turning to the majority’s finding of prejudice, my colleagues find reversible error by speculating that “[b]ecause the child pornography evidence was highly inflammatory, a smoldering fire likely *1076broke out,” causing the jury to convict Cobum of the aggravated indecent liberties charges. 38 Kan. App. 2d at 1060. Critical to this determination are the majority’s conclusions that “the evidence of sexual exploitation against Cobum was veiy strong” and that because of the “highly inflammatory nature of the images . . . the child pornography evidence was sufficiently prejudicial as to deny Cobum a fair trial.” 38 Kan. App. 2d at 1058.
The questionable basis for this finding of prejudice is best shown by reference to Cobum’s motion for new trial where he contended the exact converse: “Without the indecent liberties evidence ... no opinion, much less a conclusion beyond a reasonable doubt, could be made regarding the [photographic] images, no rational factfinder could have convicted. The only plausible explanation is that the jury was inflamed by the indecent liberties evidence.” On appeal, however, Cobum reverses himself. In a seven sentence argument he now asserts: “The jury was likely to conclude that because Mr. Cobum visited and viewed pornographic sites, he must be someone who molests children.” Cobum’s claim of prejudice on appeal is directly antithetical to the argument he made before the district court. This about-face underscores the tenuous basis for the majority’s finding that tire evidence supporting the sexual exploitation charge prejudiced the jury’s consideration of the aggravated indecent liberties charges.
Ironically, the majority’s discussion of State v. Thomas, 206 Kan. 603, 481 P.2d 964 (1971), also highlights the lack of prejudice in this case. Thomas is noteworthy for being the only known case wherein a Kansas appellate court has reversed a trial court’s order of joinder or denial of severance. See Bunyard, 281 Kan. at 398. As my colleagues point out, “[w]hat distinguishes this case from Thomas is that in Thomas the jury was never instmcted that it should consider the evidence in each case as applicable only to that case. The Thomas court factored this into its decision to reverse and remand for a new trial. 206 Kan. at 610-11.” 38 Kan. App. 2d at 1055. I agree.
Unlike Thomas, the trial judge in this case provided the jury with Instruction No. 8, which read:
*1077“Each crime charged against the defendant is a separate and distinct offense. You must decide each charge separately on the evidence and law applicable to it, uninfluenced by your decision as to any other charge. The defendant may be convicted or acquitted on any or all of the offenses charged. Your finding as to each crime charged must be stated in a verdict form signed by the Presiding Juror.”
In response, my colleagues observe: “Here, although the trial court instructed the jury to consider each case separately, we cannot say that the jury could keep separate what was relevant for each charge.” 38 Kan. App. 2d at 1055. This conclusion, however, is at variance with both Gaither and Barksdale wherein our Supreme Court rejected similar claims of jury confusion precisely because the juries were instructed in the same manner as Instruction No. 8 which was given in the present case. Gaither, 283 Kan. at 687; Barksdale, 266 Kan. at 510. As our Supreme Court said in Gaither, “the court can presume that the jury complied with the instruction.” 283 Kan. at 687.
The majority is concerned, however, about “the possibility of confounding the jury by scrambling and jumbling the evidence of the joined cases.” 38 Kan. App. 2d at 1057. At the outset, this terminology is elusive. Nevertheless, I believe my colleagues’ concern is unwarranted. They quote two sentences from the State’s closing argument wherein the prosecutor suggested that Cobum’s intent to satisfy his sexual desires by lewdly touching S.W. and J.W. could be inferred from the sexual exploitation of a child evidence. Assuming arguendo that this argument was improper, this error was not apparent to defense counsel who failed to object to it at trial or on appeal. Moreover, contrary to the majority’s concern, these two sentences dealt with proof of the intent to satisfy Cobum’s sexual desires, not proof of a general predisposition to commit crimes. In the present case the State was required to prove beyond a reasonable doubt in both the sexual exploitation charge and the aggravated indecent liberties charges that Cobum had the identical intent — to arouse or satisfy the sexual desires of the child and/or the defendant. See K.S.A. 1998 Supp 21-3516(a)(2) and K.S.A. 21-3504(a)(3)(A).
*1078My review of the entire record, including both the presentation of witnesses and the parties’ opening statements and closing arguments reflects that — apart from the two sentences mentioned earlier — both parties presented their evidence and argument regarding the two types of sex offenses separately and without reference to the other. This separate mode of presentation of evidence and argument, coupled with the trial court’s admonitions in Instruction No. 8, were sufficient to provide Cobum with a fair trial.
One other difference distinguishes this case from Thomas. In Thomas, the defendant desired to testify regarding the purported accidental nature of the shooting, yet he complained of prejudice because the joinder of forgery and uttering charges required him to also testify and admit guilt to a crime of dishonesty. In die present case, however, Cobum does not raise this claim of prejudice. In fact, his defense to both the sexual exploitation charge and the aggravated indecent liberties charges was the same — lie was innocent of all the allegations. In contrast to Thomas, the denial of severance could not have adversely impacted Cobum’s decision to testify regarding both types of sex offenses.
Finally, having reviewed the entire record, I am unable to conclude that the eight pornographic images and the web-sites evidence had a “ ‘substantial and injurious effect or influence’ ” in convicting Cobum of the aggravated indecent liberties charges. See Bunyard, 281 Kan. at 402.
My colleagues disagree, noting the “vast amount” of “highly inflammatory evidence” presented to prove the sexual exploitation charge. 38 Kan. App. 2d at 1061. In particular, the majority focuses on the coarse and lewd search terms used by the FBI in the text search of Cobum’s computer, and State’s Exhibit 11, which was a computer printout listing the web sites accessed on Cobum’s computer which contained these search terms.
Reasonable jurists may disagree as to the point when the sheer quantity of probative evidence becomes prejudicial. If some of the evidence to prove the sexual exploitation charge admitted at Cobum’s trial was overly prejudicial, however, it was not because the trial court overruled Cobum’s severance motion. It was because Coburn’s counsel did not contemporaneously object to the *1079admission of this evidence at trial based upon the grounds cited by the majority — that it was cumulative and highly inflammatory — or because when Cobum’s counsel did object, he failed to appeal the trial court’s adverse ruling. Assuming some of the evidence was cumulative and inflammatory, Cobum should have properly objected to it and raised it as an issue in this appeal. His failure in this regard should preclude review. See K.S.A. 60-404; State v. Anthony, 282 Kan. 201, 206, 145 P. 3d 1 (2006) (in order to preserve an issue for appeal a party must make a timely and specific objection); see also State v. Walker, 283 Kan. 587, 594, 153 P.3d 1257 (2007) (an issue not briefed by the appellant is deemed waived or abandoned).
Central to my determination that the evidence supporting the sexual exploitation charge did not substantially influence the jury’s verdicts on the aggravated indecent liberties charges, is the overwhelming wealth of evidence proving Cobum’s guilt in sexually abusing S.W. and J.W.
A variety of witnesses provided incriminating testimony tending to show that Cobum repeatedly engaged in lewd touching of S.W. and J.W., beginning in Maryland and continuing into Kansas during the 17-month period. The separate testimony of two victims, S.W. and J.W., established Cobum’s modus operandi — wrestling. Cobum’s wrestling included tickling or claiming to look for the young girls “bellybutton[s].” This behavior was witnessed by K.F., a friend of the girls, who testified she observed it “[e]very time we went over there.” Another friend and next-door neighbor of the girls, L.C., testified she personally observed Cobum during wrestling “try to slide his hand into their shirts or try to put it inside their pants.” L.C. even described a separate, unrelated incident where Cobum “tackled me and he had my wrists pinned down to the ground. He was sitting on my pelvic area and he started to grind on me.” When L.C. yelled, Cobum told her, “[I]t’s okay, be quiet.”
In addition to the testimony of the two victims, their mother, and their two friends, the defense inexplicably presented damaging testimony by Cobum’s wife, Rose. Under questioning by defense counsel, Rose testified that although she initially believed her hus*1080band’s denials of sexual abuse, she ultimately concluded her husband had, in fact, molested her granddaughters.
The jury was also shown the handwritten note Cobum left for his wife at the time he abandoned the family. In it, Cobum acknowledged hearing mmors that he had molested S.W. and J.W., but he denied the accusations and concluded:
“I don’t care now. My life is over now. I was living on borrowed time, anyway. At least I will have fun the last years of my life with the money — the money will help me to settle down. I am sorry. Hope it didn’t — I am sorry it didn’t work out. Love, Ed.”
Finally, at trial, Cobum admitted that he stole $10,000 from his employer to facilitate his flight from Kansas to start his life anew in Las Vegas, where he was ultimately apprehended.
In summary, this trial evidence (apart from the sexual exploitation evidence) made a very compelling case that Cobum had repeatedly sexually abused S.W. and J.W. Given the quality and quantity of this incriminating evidence, the sexual exploitation evidence could not have caused any manifest injustice sufficient to deprive Cobum of a fair trial. It should be remembered: “A district court abuses its discretion when no reasonable person would adopt the view taken by the court. Thus, the defendant has a heavy burden to establish reversible error once the court concludes that one of the conditions precedent set forth in K.S.A. 22-3202(1) is met.” Gaither, 283 Kan. at 688. Quite simply, Cobum wholly failed to meet this heavy burden.
I would affirm the convictions.