In general
• [T]he Rules explicitly provide that nonverbal conduct can be a “statement.”
Powell v. State, 714 N.E.2d 624, 627 (Ind. 1999)(citing Evid. R. 801(a)(2)[recodified without substantive changes at Evid. R. 801(a)])
• “Statement” means a person’s oral assertion, written assertion, or nonverbal conduct if the person intended it as an assertion.
Evid. R. 801(a)(emphasis added)
• Conduct as hearsay involves an implied assertion by the out-of-court asserter. It means that the conduct is the result of a thought, and through such conduct, that thought is being used as proof of the matter impliedly asserted.
Watt v. State, 412 N.E.2d 90, 96 (Ind. Ct. App. 1980)
• An example of nonverbal conduct that constitutes an assertion is a witness's identification of a perpetrator by pointing.
Sandefur v. State, 945 N.E.2d 785, 788 (Ind. Ct. App. 2011)(citing Hall v. State, 284 N.E.2d 758, 762 (Ind. 1972))