Cincinnati- In trying to win an obscenity conviction against a Clifton store owner, assistant prosecutor Brad Greenberg asked a jury Tuesday to take “the Kroger test” in making their determination.
“When I play this movie, I want you to think, ‘What would the people (shopping) at Kroger’s think?’ ” Greenberg told jurors as the pandering obscenity case against Shawn Jenkins and his Tip Top Magazines store opened.

“Would they think it’s obscene or would they think it’s fine?”

That “test” has nothing to do with why Jenkins is accused of a crime, countered one of his lawyers, Jennifer Kinsley.

“What this case really boils down to is choice. The choice of you and your neighbors to watch what you want — and the government’s attempt in this case to take that choice away from you,” she said.

Hamilton County Sheriff’s Office Detective Matthew Guy was undercover in July of 2001 when he went into Jenkins’ store and bought a “Max Hardcore Extreme, Vol. 7” video.

The video graphically shows the use of a gynecological tool known as a speculum, authorities said.

Kinsley and Lou Sirkin, Jenkins’ other attorney, will present evidence they believe shows Hamilton County may not be the stodgy, ultraconservative place it is reputed by some to be. They said they will show that many people enjoy adult entertainment through the Internet, videos, cable and satellite television shows.

The standard for determining obscenity is what the average citizen in a contemporary community decides is obscene, authorities say.

After Elyse Metcalf, also a client of Sirkin and Kinsley, was acquitted of obscenity charges in 2001 for selling similar adult videos, her lawyers contended the community no longer considers those kinds of videos obscene.

Jenkins’ case is being tried before Common Pleas Court Judge Richard Niehaus — for the third time.

The first ended in a mistrial when Sirkin discovered prosecutors hadn’t given him all of the videos shown to the grand jury. Two of the videos shown to grand jurors didn’t lead to an indictment, meaning grand jurors didn’t find them obscene.

The second trial ended — and drew national attention — when one of the jurors was so bored by the allegedly obscene video he fell asleep while watching it. That — and two other jurors averting their eyes when they were supposed to be watching — forced Niehaus to declare another mistrial.