dissenting.
I respectfully dissent because the circumstantial evidence in this case fails to exclude every other reasonable hypothesis of Lopez’s *688guilt beyond a reasonable doubt. No one identified Lopez as the robber. The police failed to locate the knife used in the robbery, the distinctive sweater worn by the robber, or the proceeds of the crime in a search of Lopez’s home and his grandmother’s car just hours after the robbery. The only evidence linking him to the robbery in any way was the hat, gloves, and bandanna found in the car he had driven earlier in the day and the statement he gave to police implicating Wicker.3
The State argues that this evidence shows Lopez was a party to the crime under OCGA § 16-2-20 which provides:
(a) Every person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime, (b) A person is concerned in the commission of a crime only if he: (1) Directly commits the crime; (2) Intentionally causes some other person to commit the crime under such circumstances that the other person is not guilty of any crime either in fact or because of legal incapacity; (3) Intentionally aids or abets in the commission of the crime; or (4) Intentionally advises, encourages, hires, counsels, or procures another to commit the crime.
This argument fails because no evidence shows that Lopez did any of these things. “Presence at the scene of a crime is not sufficient to show that a defendant is a party to the crime under OCGA § 16-2-20. [Cits.] Even approval of the act, not amounting to encouragement, will not suffice.” Brown v. State, 250 Ga. 862, 864 (1) (302 SE2d 347) (1983).
An accessory after the fact is not a party to a crime under OCGA § 16-2-20, but instead “is guilty of a separate, substantive offense in the nature of an obstruction of justice.” Moore v. State, 240 Ga. 210, 212 (1) (240 SE2d 68) (1977). Thus, one who drives a murderer from the scene of the crime after learning that a murder was committed is guilty of accessory after the fact. Moore v. State, 94 Ga. App. 210, 215 (1) (94 SE2d 80) (1956). “In essence, to be guilty as a party to a crime as an aider or abettor pursuant to OCGA § 16-2-20 (b) (3), a defendant must be an accessory before the fact.” (Emphasis supplied.) Purvis v. State, 208 Ga. App. 653, 654-655 (433 SE2d 58) (1993).
In this case, Lopez’s statement, taken at face value, shows only that he was present at the scene of the armed robbery, but had no knowledge that it was going to occur. The statement, along with his *689fiancée’s testimony, also provides an innocent explanation for the presence of the evidence later found in the car he drove. On the other hand, one could also infer from Lopez’s statement and the evidence found in the car that he was not only present, but a party to the armed robbery. He might have known Wicker’s intentions in advance and been a willing participant. Thus, we are faced with deciding whether this evidence excluded “every other reasonable hypothesis save that of the guilt of the accused.” OCGA § 24-4-6. We recognize that this is
primarily a question for determination by the jury. This of necessity is so, for we have no legal yardstick by which we can ordinarily determine what in a given case is a reasonable hypothesis, save the opinion of twelve upright and intelligent jurors. After having heard the witnesses and having observed them testify, they are more capable of judging of the reasonableness of a hypothesis produced by the evidence, or lack of evidence, and the defendant’s statement, than is a court of law. However, this court is a court of law, [and] where there appears a hypothesis from the evidence, or from the lack of evidence and the defendant’s statement, pointing to the innocence of the accused, and which tested by all human experience is a reasonable one, [we] may declare it so as a matter of law.
(Punctuation omitted.) Wood v. State, 156 Ga. App. 810, 811-812 (1) (275 SE2d 694) (1980).
In my view, the evidence does not exclude a reasonable hypothesis of innocence, and the alleged contradictions in the evidence do not alter this conclusion. Furthermore, many of the alleged contradictions outlined by the majority are not actually so. Lopez did not testify at trial and gave no written or recorded pre-trial statements. The fact that the Georgia Bureau of Investigation agent’s trial summary of Lopez’s oral statement contains additional information, consistent with the sheriff’s trial summary of a different interview, does not mean that Lopez gave inconsistent statements. The GBI agent might have remembered more about what Lopez told him; the GBI agent might have conducted a better interview, obtaining more information from Lopez; or the law enforcement officers’ view of what information was important may have differed. What is certain is that Lopez did not control the scope of these witnesses’ testimony.
Likewise, the fiancée’s testimony that the items kept in the car “all the time” belonged to her or her cousin does not contradict Lopez’s pre-trial statement that he saw Wicker wearing similar items after he had been in the car where these items were kept. Moreover, *690there is no direct evidence that Wicker actually wore the items in the car or that the items found in the car were actually used in the robbery. The robbery took place in December, a cold-weather month, and the items found in the car were not unusual or unique.
Decided November 30, 2001. John S. Wetzler, for appellant. Stephen D. Kelley, District Attorney, Jan Kennedy, Assistant District Attorney, for appellee.If our task were only to measure whether the circumstantial evidence could be construed in a manner sufficient to sustain Lopez’s guilt, I would reach a different result. We must also decide, however, whether the circumstantial evidence was sufficient to exclude every other reasonable hypothesis save that of Lopez’s guilt. The vague, speculative evidence introduced in this case simply does not meet this test as a matter of law. The evidence shows that Wicker may have robbed the store without Lopez’s knowledge that he intended to do so, and no evidence was presented excluding this reasonable hypothesis of innocence.
“The most fundamental premise of our criminal justice system is that a person ought not to be punished for a criminal offense until the state demonstrates guilt beyond a reasonable doubt. [Cit.]” (Punctuation omitted.) Ayala v. State, 262 Ga. 704, 706 (1) (425 SE2d 282) (1993). Because this burden was not met in this case, I must respectfully dissent.
I am authorized to state that Judge Phipps joins in this dissent.
Although direct admissions of the crime charged are not circumstantial evidence (Bigham v. State, 222 Ga. App. 353, 354 (474 SE2d 254) (1996)), admissions of fact from which an inference of participation arises are circumstantial only. Eberhart v. State, 47 Ga. 598, 609 (1873); Riley v. State, 1 Ga. App. 651, 655 (57 SE 1031) (1907).