nonverbal conduct

Nonverbal conduct counts as a statement only when the actor intends it as an assertion. A nod in direct response to a yes-or-no question about spraying herbicide qualifies because the gesture communicates agreement. A shrug or pointing without communicative purpose does not qualify.

A thumbs-up emoji qualifies when used in direct response to a question calling for agreement. The reaction functions as the equivalent of saying yes and therefore meets the definition of a statement. The analysis turns on the actor's intent to communicate rather than on the digital format.

The court examines the actor's testimony about subjective intent together with the surrounding circumstances. A physician's direct denial of communicative purpose weighs heavily against finding an assertion. Context such as timing and audience may support an inference of intent but does not override credible testimony negating it.

Assertive conduct is performed with the intent to communicate a fact or belief. Nonassertive conduct lacks that intent even if an observer might draw an inference from it. The rule excludes nonassertive conduct from the hearsay definition because it carries lower risks of fabrication and misperception.