concurring.
I concur in Parts III (prosecutorial misconduct) and IV (misleading jury instructions) of the lead opinion without reservation. Because Ohio state law at the time of Smith’s conviction severely restricted the consideration of his intoxication evidence to the point of rendering it unhelpful to Smith, I also reluctantly join in Part V (the lesser-included-offense instruction). But I write separately to express my concerns regarding the Ohio Supreme Court’s analysis of the issue of the lesser-included-offense jury instruction under Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980).
In Beck, the Supreme Court held that the death penalty may not be imposed where the jury is “not permitted to consider a verdict of guilt of a lesser included non-capital offense, and [where] the evidence would have supported such a verdict.” 447 U.S. at 627, 100 S.Ct. 2382. The petitioner in that case, Gilbert Beck, participated in a robbery with an accomplice. Id. at 629-30, 100 S.Ct. 2382. Beck maintained that he never intended to kill the victim, and that his accomplice unexpectedly struck and killed the man after Beck had bound him to a chair. Id.
The state charged Beck with intentional killing during the course of a robbery, and the trial judge was precluded by a state statute from instructing the jury as to the lesser-included offense of felony murder. Id. at 630, 100 S.Ct. 2382. After Beck was convicted and sentenced to death, his punishment was upheld by the Alabama Supreme Court. Id. at 632, 100 S.Ct. 2382. The United States Supreme Court reversed, identifying the need for a “procedural safeguard” that would “afford[ ] the jury a less drastic alternative than the choice between conviction of the offense charged and acquittal.” Id. at 633, 637, 100 S.Ct. 2382. In particular, the Court recognized that
when the evidence unquestionably establishes that the defendant is guilty of a serious, violent offense — but leaves some doubt with respect to an element that would justify conviction of a capital offense — the failure to give the jury the “third option” of convicting on a lesser included offense would seem inevitably to enhance the risk of an unwarranted conviction.
Id. at 637, 100 S.Ct. 2382.
Beck therefore identifies the need to provide jurors with this “third option” in order to avoid two polar-opposite results: convicting a defendant based on a “belief that the defendant is guilty of some serious crime and should be punished,” or acquitting a guilty defendant based on the *528belief that, “whatever his crime, the defendant does not deserve death.” Id. at 642-43, 100 S.Ct. 2382. And although both of these two outcomes are undesirable, the “fundamental concern” in Beck is “that a jury convinced that the defendant had committed some violent crime but not convinced that he was guilty of a capital crime might nonetheless vote for a capital conviction if the only alternative was to set the defendant free with no punishment at all.” Schad v. Arizona, 501 U.S. 624, 646, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991).
When evaluating Smith’s appellate argument that he was entitled to an involuntary manslaughter instruction (which, unlike the charge of aggravated murder, does not require a showing of an intent to kill), the Ohio Supreme Court misapplied Beck in two respects. The Court first noted that, contrary to Smith’s contention, “he presented no evidence at trial indicating that he intended to sexually assault, rather than kill, Autumn.” State v. Smith, 97 Ohio St.3d 367, 780 N.E.2d 221, 228 (2002). (The lead opinion echoes this assertion, stating that Smith did not present any evidence “that he intended only molestation.” (Lead Op. at 525)) Lack of proof from the defendant, however, is irrelevant under Beck because a reviewing court’s analysis is limited to whether the evidence as a whole supports the giving of such an instruction. See Hopper v. Evans, 456 U.S. 605, 611, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982). Moreover, the defendant in a criminal case is never obligated to present any evidence. United States v. Hynes, 467 F.3d 951, 957 (6th Cir.2006) (approving the use of a jury instruction stating that the “[defendant has no burden to prove his innocence or to present any evidence or to testify”). The Ohio Supreme Court thus improperly implied that Smith bore the burden of providing exculpatory evidence regarding his intent, whereas Beck in fact imposes no such burden.
Second, the Ohio Supreme Court summarized Autumn’s injuries and the testimony about those injuries in a scant few sentences to conclude that Smith had the intent to kill. Smith, 780 N.E.2d at 228. In doing so, the Court held that there was sufficient evidence to reach this conclusion. See id. (“Consequently, we reject Smith’s argument that evidence of purpose was lacking.”). But a Beck analysis is not a sufficiency-of-the-evidence inquiry. Hyatt v. Branker, 569 F.3d 162, 174 (4th Cir.2009) (“A Beck challenge does not question whether the prosecutor presented evidence sufficient to sustain a conviction of a capital offense.”); Hogan v. Gibson, 197 F.3d 1297, 1305 (10th Cir.1999) (observing that Beck “requires a court to consider whether there is sufficient evidence to warrant instructing a jury on a lesser included offense, not whether there is sufficient evidence to warrant conviction on the greater offense”).
The Ohio Supreme Court conducted no analysis to consider whether the evidence would permit a reasonable juror to find that Smith intended only to rape Autumn and not to kill her. Instead, the Court focused its attention solely on whether the evidence supported a finding that Smith intended to kill Autumn, thereby overlooking its duty to consider whether the evidence cast “some doubt” as to Smith’s intent to kill. See Beck, 447 U.S. at 637, 100 S.Ct. 2382.
And the evidence presented at trial, in my opinion, did exactly that. First, there was evidence that Smith was highly intoxicated, which in turn would have made him less aware of the consequences of his aggressive behavior on a six-month-old child. The proof indicates that, during the course of the evening, Smith consumed at least ten cans of beer. He had a blood-alcohol level of .123 when he was tested by the *529police more than seven hours after the incident. Based upon this evidence, a board-certified toxicologist testified at trial that Smith’s blood-alcohol level would have been at least .36 and possibly as high as .60 shortly before midnight. Other witnesses testified that Smith was known to be a heavy drinker who had blacked out on several occasions in the past. Both Keysha Frye (Autumn’s mother and Smith’s girlfriend) and one of her neighbors testified that on the night of the incident and in the early morning hours the following day, Smith was “very drunk.” Moreover, officers reported that they observed Smith swaying back and forth while he was answering their questions shortly after they arrived at Frye’s house. A reasonable juror could thus conclude from this evidence that Smith was too intoxicated to realize the fatal consequences of his actions.
In addition, there was no evidence to show that Smith had any motive to kill Autumn. Multiple witnesses, including Smith’s sister and a former girlfriend with whom Smith had a child, testified that Smith had taken good care of children when he had been around them. Furthermore, Frye had on many occasions entrusted Smith to watch both Autumn and her two-year-old daughter, Ashley, while Frye was at work. The absence of any evidence as to why Smith would kill Autumn further calls into question the conclusion that he intended to kill her.
Smith also made no effort to conceal Autumn’s body after she died. Instead, Smith took Autumn’s body upstairs to the bedroom he shared with Frye, and he placed Autumn’s body next to Frye in the bed. Smith also denied that Autumn was dead. A reasonable juror could interpret these actions as indicating that Smith did not realize that he had killed Autumn, a conclusion that, by necessary implication, would indicate a lack of intent to kill.
Finally, contrary to the Ohio Supreme Court’s conclusion, Autumn’s injuries are as consistent with Smith trying to keep her quiet as they are with any purported intent to take her life. Autumn suffered injuries to the side of her head and had bruising around her eyes. Dr. Marvin Platt, the coroner who performed the autopsy, testified at trial that Autumn died from asphyxia and blunt trauma to the head. Injuries to her head and abrasions on her forehead, cheek, and chin, he surmised, indicated that Autumn was lying on her stomach and that her face had been forced into a pillow. He also observed that Autumn suffered subarachnoid and retinal hemorrhages consistent with shaken-baby syndrome, which indicated that an effort had been made to restrain Autumn. Although one interpretation of this testimony is that Smith deliberately suffocated Autumn in a pillow, another reasonable interpretation is that Smith unintentionally crushed Autumn with the weight of his body and causéd her asphyxiation during the course of the rape. The nature of Autumn’s injuries thus do not necessitate a finding of deliberate intent to kill on the part of Smith.
I find particularly significant the fact that the jurors grappled with the issue of intent following the close of the evidence. During the penalty phase, the jury submitted the following question to the court: “If we feel [Smith] was not in his right mind, is that reason enough alone not to give him a death sentence according to the law”? This question indicates that the jurors, based on their weighing of the evidence presented at trial, had doubts as to whether Smith had the mental capacity to develop the intent to kill Autumn at the time of the rape.
The lead opinion declines to view the evidence from this perspective, asserting *530that the facts of Autumn’s murder “conclusively proves intent to kill” so as to preclude any juror’s reasonable doubt as to Smith’s intent. (Lead Op. at 524) But the eases that the lead opinion relies upon to support that assertion all present scenarios markedly different from the circumstances in the instant case. In Hopper v. Evans, 456 U.S. 605, 613, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982), for example, the petitioner admitted to shooting the victim in the back during the course of an armed robbery. The petitioner in Campbell v. Coyle, 260 F.3d 531, 535, 543 (6th Cir.2001), stabbed his victim with a knife at least four times. Similarly, in Slaughter v. Parker, 450 F.3d 224, 237-38 (6th Cir.2006), the petitioner bludgeoned the victim in the head and stabbed her five times in the chest, “including a stab wound that penetrated five inches into her chest and pierced her heart.” (Citation omitted.) And in Abdus-Samad v. Bell, 420 F.3d 614, 629 (6th Cir.2005), the petitioner shot the victim five or six times.
The above scenarios stand in sharp contrast to the circumstances of the present case, where there is no evidence conclusively demonstrating an intent to kill, such as repeated stabbings or shootings. There is in fact no indication that Smith used a weapon of any kind, unlike the petitioners in the cases relied upon by the lead opinion. In sum, I believe there is “some doubt,” see Beck, 447 U.S. at 637, 100 S.Ct. 2382, of Smith’s intent to kill Autumn in light of his extreme intoxication, his lack of motive to kill Autumn, his taking Autumn’s body to Frye after the incident, and the nature of Autumn’s injuries.
Unfortunately for Smith, however, the above analysis is insufficient to grant Smith habeas relief because, as the lead opinion correctly notes, Ohio law at the time of his conviction effectively precluded Smith from relying on evidence of his intoxication to support the argument that he intended only to rape, and not kill, Autumn. See State v. Otte, 74 Ohio St.3d 555, 660 N.E.2d 711, 720 (1996) (permitting a defendant to raise a voluntary-intoxication defense “only where the defendant was so intoxicated as to be mentally unable to intend anything” and thus “create a reasonable doubt as to his ability to form the specific intent essential to the charged felony.” (citation and internal quotation marks omitted)). The facts before us demonstrate that Smith, despite his intoxication, clearly intended something of a criminal nature. (Indeed, Smith concedes on appeal that he intended to rape Autumn.) And, as noted by the lead opinion, the Supreme Court has upheld similar state-law interpretations against due process challenges. See Montana v. Egelhoff, 518 U.S. 37, 56, 116 S.Ct. 2013, 135 L.Ed.2d 361 (1996) (holding that a Montana statute providing that voluntary intoxication could not be considered when determining a defendant’s mental state did not violate due process); see also Goodwin v. Johnson, 132 F.3d 162, 191 (5th Cir.1997) (holding that, in light of Egelhoff, “the laws of the state foreclose our finding a Beck violation on the basis that evidence of Goodwin’s voluntary intoxication could have allowed a reasonable jury to convict him of the lesser-included offense of murder”).
Without Smith’s intoxication argument — the strongest, in my opinion, demonstrating his lack of intent to Mil — the remaining evidence would not permit a reasonable juror to find that Smith intended only to rape Autumn. Therefore, despite my disagreement with the Ohio Supreme Court’s analysis, I concur with the lead opinion’s conclusion that Smith is not entitled to habeas relief.