dissenting.
For the reasons that follow, I would reverse the conviction and remand for a new trial.
I.
Over objection, the trial judge allowed the victim’s sister to testify concerning the following conversation that she had with the victim the day before the victim was killed:
Q: Now, would you tell these ladies and gentlemen what the conversation was that you had with your sister on March the 20th of 1989.
A: I told Thelma I had had my ring fixed by the jeweler. And she shook her hand and her wedding ring —
Q: And what did she say?
A: That hers was still — it shook whenever she — (demonstrating)
Q: .... Tell us what, if anything, she said she was going to do with the rings.
A: She was going to give them to me to carry back up to Silver Spring when I was there going to Dr. George the next time that I came. And I would take it to the jeweler and he would fix it so it wouldn’t — it wouldn’t — mine doesn’t, (demonstrating)
Q: Did she tell you which rings she wanted to take to the jeweler’s?
A: Yes, her wedding ring and her engagement ring.
This testimony was offered to prove that the victim (1) “shook her hand and her ring” and (2) said she would give her ring to the witness for delivery to the jeweler.
The majority holds that the victim’s statement that she would give rings to the witness for delivery to the jeweler was not offered “to evidence the truth of the matter asserted,” i.e., to prove that she intended to give the sister the rings for delivery. Even if I accept the majority’s conclusion that the statement is not an explicit assertion that the victim had the rings, other parts of the witness’s testimony *898concerning the victim’s out-of-court statements cannot be so easily dismissed. The statement, “she shook her hand and her wedding ring,” is an assertion offered “to evidence the truth of the matter asserted.” Eckhart v. Commonwealth, 222 Va. 213, 216, 279 S.E.2d 155, 157 (1981).
It is clear that the statement “she shook her hand and her wedding ring” can only be taken as an assertion to prove the truth of the matter asserted. The witness’s recitation of the victim’s out-of-court conduct of shaking her hand and her wedding ring was intended as an assertion that the victim possessed the rings at that time.2 “Nonverbal conduct . . . intended ... as an assertion and offered in evidence to prove the truth of the matter asserted falls within the ban on hearsay evidence.” Stevenson v. Commonwealth, 218 Va. 462, 465, 237 S.E.2d 779, 781 (1977). To the extent that the Commonwealth offered the victim’s nonverbal conduct and statements, which were communicated to the witness for the purpose of proving that the victim possessed the rings at the time of the conversation, the Commonwealth has offered this particular assertion as evidence of the truth of its contents. See Donahue v. Commonwealth, 225 Va. 145, 152, 300 S.E.2d 768, 772 (1983). The Commonwealth sought to have the jury assess the credibility of the victim through the witness’s belief of the victim’s truthfulness at the time the assertion was made over the telephone. That is an impermissible mode of proof. Id.
II.
I also disagree with the majority’s conclusion that the trial judge properly excluded testimony that James Miles, who was in the vicinity of the house as it was burning, had a twenty-two caliber weapon. In his defense, Weller sought to prove that Miles had the opportunity and motive to commit the offense. The fact that Miles owned a twenty-two caliber weapon was other evidence that had a tendency to establish Weller’s defense.
*899The Commonwealth argued that the evidence proved that Miles’s gun “was virtually excluded by virtue of the ballistics tests on Weller’s gun.” I disagree. The evidence at trial proved that Weller’s gun had rifling characteristics consistent with the recovered bullets. The evidence at trial also proved, however, that those same rifling characteristics are present in firearms manufactured by 48 different manufacturers and might be present in “several hundreds of thousands of ... 22 caliber weapons.” This evidence did not exclude Miles’s gun as the murder weapon. Accordingly, I would hold that testimony concerning Miles’s ownership and possession of a twenty-two caliber weapon was relevant, material, and was improperly excluded.
III.
I further disagree with the majority that the record does not prove that Miles was an adverse witness. An adverse witness is a “witness which the party knows in advance is hostile but which the party elects (or is forced) to call anyway.” Charles E. Friend, The Law of Evidence in Virginia § 33(2) (3d ed. 1988). A party can ask the trial judge to declare a witness to be an “adverse witness” before the witness is on the stand. See Daniels v. Morris, 199 Va. 205, 211, 98 S.E.2d 694, 698 (1957). Moreover, a trial judge may, at any time, put appropriate questions to a witness to determine whether the witness is indeed adverse or hostile. Charles E. Torcia, Wharton’s Criminal Evidence § 378 (1986).
Weller’s counsel proffered to the trial judge that Miles refused to speak to him, that Miles was hostile to his inquiries, that Miles cooperated extensively with the Commonwealth, and that Miles had said Weller was at the scene of the fire. Moreover, Miles was alleged by Weller to be the person who committed the murder for which Weller was being tried. This proffer sufficed to establish that Miles’s testimony was adverse and hostile to Weller.
IV.
I agree with the majority that the trial judge improperly excluded testimony by Pamela Baker concerning Weller’s offer to sell a ring to her three weeks prior to the murder. I do not agree that the error was harmless.
“Trial error is presumed to be prejudicial and a fair trial on the merits and substantial justice are not achieved if an error at trial has affected the verdict.” Hanson v. Commonwealth, 14 Va. App. 173, *900189-90, 416 S.E.2d 14, 24 (1992). This case was entirely circumstantial. The Commonwealth’s case relied in large measure upon proof that the victim possessed her rings the day before her death. The defense offered evidence that tended to contradict the Commonwealth’s evidence. Baker’s testimony may have been pivotal in convincing the jury that Weller’s version of the events was more believable than the version offered by the Commonwealth.
Accordingly, I would reverse the convictions and remand for a new trial.
The majority opinion states in footnote 1 that “[ojbviously, [the witness] could not see [the victim’s] hand motions over the telephone.” Although I agree with that observation, I do not agree with the majority’s assertion that the witness’s testimony was merely a reflection of her “experience concerning [the victim’s] reasons for wanting the rings repaired.” The witness’s testimony that the victim “shook her hand and her wedding ring” is an indication that it happened. The reasonable inference is either that the victim told the witness what she was doing or that the witness heard what she testified to.