COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Benton, Coleman, Willis, Elder, Bray, 

 Fitzpatrick, Annunziata and Overton 

Argued at Richmond, Virginia 

KATINA LYNN ZELENAK 

 OPINION BY 

v. Record No. 1816-94-3 JUDGE ROSEMARIE ANNUNZIATA 

 JULY 22, 1997 

COMMONWEALTH OF VIRGINIA 

UPON A REHEARING EN BANC 

FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY 

Kenneth I. Devore, Judge 

 Frederick M. Kellerman, Jr. (Long & Long, on 

brief), for appellant. 

 Daniel J. Munroe, Assistant Attorney General 

(James S. Gilmore, III, Attorney General; 

Leah A. Darron, Assistant Attorney General, 

on brief), for appellee. 

 On September 24, 1996, a panel of this Court reversed the 

convictions of Katina Lynn Zelenak for attempted robbery, 

conspiracy to commit robbery and a related firearms charge on the 

ground that the trial court erred in refusing to admit certain 

testimony of Zelenak's expert witness. Zelenak v. Commonwealth, 

23 Va. App. 259, 475 S.E.2d 853 (1996). The panel affirmed the 

trial court with respect to Zelenak's further contentions that 

the trial court erred in permitting the Commonwealth to use a 

competency report to impeach her and in refusing to admit the 

statement of an alleged co-conspirator. Upon rehearing en banc, 

we affirm Zelenak's convictions. 
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 I. 

 At 2:00 a.m., a manager of a pizza restaurant was making a 

night deposit at a bank when a man with a gun approached him. 

After the gunman said, "Hold it," the manager jumped into his 

vehicle and called the police using his cellular telephone. A 

vehicle then entered the bank parking lot, continued to the back 

of the bank where the gunman had run, and sped away. As the 

manager followed the automobile, the police arrived and stopped 

the automobile. The police arrested the driver, Katina Zelenak, 

and the two men with her, William Smith, the gunman, and Paul 

Morehead. Zelenak and the two men were indicted for attempted 

robbery, use of a firearm during the attempted robbery, and 

conspiracy to commit robbery. 

 II. 

 On motion of Zelenak's counsel prior to trial, the trial 

court ordered Zelenak to undergo a psychological analysis to 

determine her competency to stand trial. Zelenak also filed a 

notice of intent to present an insanity defense. Later, after 

Zelenak withdrew the notice of intent to present an insanity 

defense, the Commonwealth moved in limine to prohibit the expert 

testimony of Gwynn Polidoro, a licensed clinical social worker. 

The Commonwealth argued that Polidoro's testimony would be 

offered by Zelenak as proof of an ultimate issue of fact because 

it addressed Zelenak's state of mind at the time of the offense. 

 Defense counsel responded that Polidoro would testify that 
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Zelenak suffers from multiple personality disorder, a 

dissociative disorder that resulted from traumatic stress, which 

made her "susceptible to duress." The trial court deferred 

ruling on the motion until trial. 

 Zelenak's defense at trial was that she participated in the 

crimes out of fear that Morehead would kill her or a member of 

her family. At trial, appellant proffered that Polidoro would 

testify that 

 [Zelenak] was in such a fear of Mr. Morehead 

at most times that at any given time she was 

afraid that if she didn't go along with what 

he was saying that she was going to be harmed 

and that would carry through the time of the 

offenses, as well as before that and after 

that. 

The court granted the Commonwealth's motion to exclude Polidoro's 

testimony but allowed defense counsel to further proffer the 

expert's testimony. In chambers, the defense proffered that 

Polidoro would testify, inter alia, that 

 [i]n her most recent relationship with Paul, 

she became very attached to him almost 

immediately. She has revealed mixed, 

revealed episodes of violent sexual 

exploration, humiliation mixed with feelings 

of specialness, specialness. She idolizes 

him on one point and seems to be very afraid 

of him on the other. In my opinion, she got 

to the point where she believed escape from 

him or disobedience would result in her death 

or the death of a family member. 

 At the conclusion of the evidence, the jury convicted 

Zelenak on all three charges. Zelenak contends that the trial 

court erred in not allowing Polidoro's testimony. We disagree. 
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 An expert witness may express an opinion relative to the 

existence or nonexistence of facts not within common knowledge, 

but "the admission of expert opinion upon an ultimate issue of 

fact is impermissible because it invades the function of the fact 

finder." Llamera v. Commonwealth, 243 Va. 262, 264, 414 S.E.2d 

597, 598 (1992). In Llamera, the Supreme Court held that the 

trial court erred in allowing an expert witness to state that 

ninety-three grams of cocaine packaged in a number of separate 

plastic "baggies" had been "packaged that way for distribution" 

and that the quantity of cocaine found "would suggest that the 

owner of the cocaine was a person who sold cocaine." Id. The 

Court reversed Llamera's conviction for possession with intent to 

distribute, reasoning that the expert expressed an opinion on one 

of the ultimate issues, viz., intent to distribute. Id. at 265, 

414 S.E.2d at 599. The Court rejected the Commonwealth's 

contention that the expert's use of the word "suggest" was a 

qualification, not a statement of fact. Id. at 264-65, 414 

S.E.2d at 598-99. See also Bond v. Commonwealth, 226 Va. 534, 

536-39, 311 S.E.2d 769, 770-72 (1984) (trial court in murder case 

erred in admitting report of medical examiner which ruled out 

possibility that victim's death resulting from a four-story fall 

was caused by either accident or suicide); Ramsey v. 

Commonwealth, 200 Va. 245, 249-52, 105 S.E.2d 155, 158-60 (1958) 

(trial court erred in allowing expert in arson case to conclude, 

based upon set of hypothetical facts, that fire was of incendiary 
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origin). 

 In the present case, appellant asserted the defense of 

duress. "The common law defense of duress excuses acts which 

would otherwise constitute a crime, where the defendant shows 

that the acts were the product of threats inducing a reasonable 

fear of immediate death or serious bodily injury." Pancoast v. 

Commonwealth, 2 Va. App. 28, 33, 340 S.E.2d 833, 836 (1986). 

Accordingly, whether appellant acted under duress was the 

"precise and ultimate issue in the case," upon which expert 

opinion could not be expressed. See Cartera v. Commonwealth, 219 

Va. 516, 519, 248 S.E.2d 784, 786 (1978) (reversing rape 

conviction where medical expert allowed to express opinion that 

victims had been raped). To support a defense of duress, 

appellant had to demonstrate that her criminal conduct was the 

product of Morehead's unlawful threat that caused her reasonably 

to believe that performing the criminal conduct was her only 

reasonable opportunity to avoid imminent death or serious bodily 

harm, either to herself or another. See Daung Sam v. 

Commonwealth, 13 Va. App. 312, 324, 411 S.E.2d 832, 839 (1991). 

 Appellant proffered that her psychologist would testify, 

inter alia, that appellant suffered from a disorder which made 

her "susceptible to duress," that Zelenak so feared Morehead at 

the time of the offense that she believed she would be harmed if 

she did not comply with his demands, and that Zelenak reached a 

point where she believed escape from Morehead or disobedience to 
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him would result in her death or death of a family member. The 

proffered testimony expresses an opinion on the precise and 

ultimate issue in this case and was, therefore, properly excluded 

by the trial court.1

 III. 

 Prior to Zelenak's testimony in her defense, her counsel 

moved to prohibit the Commonwealth from cross-examining Zelenak 

concerning statements made by her during the competency 

evaluation. The defense claimed the questioning would establish 

Zelenak's state of mind at the time of the offense, in violation 

of Code § 19.2-169.7. The Commonwealth argued that the 

evaluation would be used for impeachment purposes only. Because 

the court reporter changed tapes when the trial court ruled, the 

transcript does not contain the ruling on this issue. 

 After Zelenak testified in her own defense, the Commonwealth 

called her as a rebuttal witness. When asked if there was, "Some 

reason you don't like [your family] or wouldn't care whether 

 1We find no support for the suggestion of the dissent, to 

the extent it can be so read, to impose a duty on the trial court 

to cull the "relevant and probative portions" of the proffer and 

admit only that testimony. See, e.g., Donavant v. Hudspeth, 347 

S.E.2d 797, 812-13 (N.C. 1986) ("when an offer of evidence is 

made, some of which is admissible and some of which is 

inadmissible, it is not the responsibility of the trial judge to 

separate the admissible from the inadmissible evidence, and in 

the absence of an appropriately-limited offer by the proponent of 

the evidence, the trial judge's ruling excluding the evidence 

will be upheld on appeal"); Dunn v. Wal-Mart Stores, Inc., 909 

S.W.2d 728, 735 (Mo. Ct. App. 1995); Holman v. Papio-Missouri 

River Natural Resources Dist., 523 N.W.2d 510, 510 (Neb. 1994); 

Pennington v. Brock, 841 S.W.2d 127, 132 (Tex. Ct. App. 1992). 
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anything happened to them," she responded, "No, I love my family 

very much." Over defense counsel's objection, the Commonwealth 

then inquired whether she had told psychologists that members of 

her family had physically and sexually abused her. Zelenak 

contends the trial court erred in allowing the Commonwealth to 

impeach her testimony with statements she made during the 

competency evaluation. We disagree. 

 Code § 19.2-169.7 provides: 

 No statement or disclosure by the defendant 

concerning the alleged offense made during a 

competency evaluation ordered pursuant to 

§ 19.2-169.1, a mental state at the time of 

the offense evaluation ordered pursuant to 

 § 19.2-169.5, or treatment ordered pursuant 

to § 19.2-169.2 or § 19.2-169.6 may be used 

against the defendant at trial as evidence or 

as a basis for such evidence, except on the 

issue of his mental condition at the time of 

the offense after he raises the issue 

pursuant to § 19.2-168. 

Code § 19.2-169.7 explicitly refers to statements "concerning the 

alleged offense." Zelenak admits that the questions at issue did 

not directly relate to the offense but claims they are irrelevant 

and highly prejudicial. In view of Zelenak's concession that the 

questions did not directly relate to the offense and in the 

absence of a record of the trial court's ruling, which is 

presumed to be correct, Justis v. Young, 202 Va. 631, 632, 119 

S.E.2d 255, 256-57 (1961), we affirm the trial court's decision. 

 IV. 

 At trial, Zelenak attempted to call James Bane to testify 

about a statement concerning the offenses Morehead made while in 
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jail. Defense counsel characterized the statement as an 

admission against Morehead's interest and also contended that the 

statement was made in furtherance of the conspiracy. The trial 

court ruled that the conspiracy ended prior to the time the 

statement was made and that the statement was inadmissible 

hearsay. 

 The record on appeal, however, does not disclose the content 

of the statement Morehead may have made to Bane. "It is well 

settled that when a party's evidence has been ruled inadmissible, 

the party must proffer or avouch the evidence for the record in 

order to preserve the ruling for appeal; otherwise, the appellate 

court has no basis to decide whether the evidence was 

admissible." Smith v. Hylton, 14 Va. App. 354, 357-58, 416 

S.E.2d 712, 715 (1992). Accordingly, the trial court's ruling is 

affirmed. 

 For the foregoing reasons, Zelenak's convictions are 

affirmed. 

 Affirmed.
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Benton, J., with whom Elder, J., joins, dissenting. 

 The rule is well settled that an expert witness in a 

criminal trial "may not express an opinion as to the ultimate 

issue to be determined by the trier of fact." Price v. 

Commonwealth, 18 Va. App. 760, 764, 446 S.E.2d 642, 645 (1994); 

see Bond v. Commonwealth, 226 Va. 534, 538, 311 S.E.2d 769, 

771-72 (1984). Equally well settled is the rule that an expert 

in a criminal case may "testify on the basis of [the expert's] 

own personal observations or on the basis of evidence adduced at 

trial." Buchanan v. Commonwealth, 238 Va. 389, 416, 384 S.E.2d 

757, 773 (1989). Because the testimony of Gwynn Polidoro, a 

licensed clinical social worker, did not express an opinion on 

the ultimate issue, I would hold that the trial judge erred in 

excluding her testimony. 

 "The common law defense of duress excuses acts which would 

otherwise constitute a crime, where the defendant shows that the 

acts were the product of threats inducing a reasonable fear of 

immediate death or serious bodily injury." Pancoast v. 

Commonwealth, 2 Va. App. 28, 33, 340 S.E.2d 833, 836 (1986). 

 To support a defense of duress, a 

defendant must demonstrate that [her] 

criminal conduct was the product of an 

unlawful threat that caused [her] reasonably 

to believe that performing the criminal 

conduct was [her] only reasonable opportunity 

to avoid imminent death or serious bodily 

harm, either to [her]self or to another. 

Daung Sam v. Commonwealth, 13 Va. App. 312, 324, 411 S.E.2d 832, 

839 (1991). 
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 To determine whether Zelenak acted under duress, the jury 

had to decide if Zelenak "reasonably feared that [her] refusal to 

participate in the [crimes] . . . would have resulted in imminent 

death or serious injury to [herself or her] family." Id. at 324, 

411 S.E.2d at 839 (emphasis omitted). The proffer by defense 

counsel reveals that the expert would have provided information 

concerning Zelenak's past experiences and overall mental 

condition relevant to that inquiry. Defense counsel proffered 

that the expert would testify as follows: 

 If [Ms. Polidoro] was to testify she would 

observe that Mrs. Zelenak has revealed abuse 

and exposure to violence from the time she 

was a child unto her arrest. That she has a 

series of intense, but unstable 

relationships. That she has repeatedly 

looked for a rescuer for someone who would 

love her and has repeatedly failed to protect 

herself as an adult . . . . She has a 

reported sense of helplessness and lack of 

initiative saying she has difficulty making 

decisions. In her most recent relationship 

with [Morehead], she became very attached to 

him almost immediately. She has revealed 

mixed, revealed episodes of violent sexual 

exploration, humiliation mixed with feelings 

of specialness . . . . She idolizes him on 

one point and seems to be very afraid of him 

on the other. In my opinion, she got to the 

point where she believed escape from him or 

disobedience would result in her death or the 

death of a family member. 

 The proffer contained no expression of an opinion that, on 

the day in question, Zelenak reasonably believed that committing 

the crime was the only way to avoid serious bodily harm. Rather, 

the proffer concerned Zelenak's overall mental condition and past 

experiences relating to manipulation and intimidation. The 
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expert's testimony would have explained circumstances and factors 

from which a jury might have found a basis to believe Zelenak was 

susceptible to intimidation and manipulation. Thus, the evidence 

could have provided a basis for the jury to find that Zelenak 

acted because of a fear of Morehead. Such a finding would have 

tended to establish Zelenak's defense of duress. 

 The testimony also would have provided information tending 

to show that Zelenak's fear was reasonable. See McGhee v. 

Commonwealth, 219 Va. 560, 562, 248 S.E.2d 808, 810 (1978) 

("'"What reasonably appeared to the accused at the time of the 

[criminal act], as creating the necessity for [her] act, is the 

test and not what reasonably appeared to [her], provided it would 

so appear to some other reasonable person under similar 

circumstances."'") (citation omitted). In ascertaining whether 

Zelenak acted out of a subjectively reasonable fear, Zelenak's 

past experiences and mental condition were relevant in 

determining what compelled her to commit the offense. Indeed, in 

the civil context, the Supreme Court has stated that the question 

of duress "'is to be determined on consideration of the 

surrounding circumstances such as age, sex, capacity, situation, 

and relation of the parties.'" Jacobs v. Jacobs, 218 Va. 264, 

267, 237 S.E.2d 124, 126 (1977) (citation omitted). 

 In this case, where the defense claimed Zelenak had been 

abused previously, the jury, upon proper evidence, might have 

found that Zelenak reasonably believed that a failure to commit 
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the offenses would result in death or serious injury. Therefore, 

I would hold that the trial judge erred in refusing to admit the 

relevant and probative portions of Polidoro's testimony that 

would have explained Zelenak's susceptibility to duress.2

 If 

 2Nothing in the proffer states an opinion on the ultimate 

issue. In its entirety, the proffer was as follows: 

 Ms. Polidoro by education has a bachelor's 

degree from Wesleyan College and a master's 

in social work from the University of 

Georgia. She's licensed in the State of 

Virginia as a Clinical Social Worker. She's 

a board certified diplomate in clinical 

social work. She's a member of the Academy 

of Certified Social Workers. She's a member 

of the International Society for the Study of 

Multiple Personality and Dissociation and is 

a former member of the Board of Directors of 

the Women's Resource Center. She has quite 

extensive background of continuing education 

and serves as one of the local main resource 

people on multiple personalities and 

dissociative orders. If she was to testify 

she would observe that Mrs. Zelenak has 

revealed abuse and exposure to violence from 

the time she was a child unto her arrest. 

That she has a series of intense, but 

unstable relationships. That she has 

repeatedly looked for a rescuer for someone 

who would love her and has repeatedly failed 

to protect herself as an adult. That she 

would, reports both inhibited sexuality and 

compulsive sexuality. There is evidence of 

self-blame, shame, guilt and a pattern of 

attempting to protect family members and 

partners. She has a reported sense of 

helplessness and lack of initiative saying 

she has difficulty making decisions. In her 

most recent relationship with Paul, she 

became very attached to him almost 

immediately. She has revealed mixed, 

revealed episodes of violent sexual 

exploration, humiliation mixed with feelings 

of specialness, specialness. She idolizes 

him on one point and seems to be very afraid 

of him on the other. In my opinion, she got 
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this evidence had been admitted, the jury would still have had to 

decide if Zelenak acted out of a reasonable fear of Morehead. 

 Accordingly, I would reverse the conviction and remand for a 

new trial. I dissent. 

to the point where she believed escape from 

him or disobedience would result in her death 

or the death of a family member. On one of 

her, after one of her interviews with her she 

reported and these are reports that were 

provided to Dr. Cropper. It appears that she 

was switching at the time Mrs. Crockett was 

killed and would reveal more about the entire 

event if she were an estate, if she were in 

the state that she was at the time. By 

switching, Ms. Polidoro would talk about the 

switching from one personality to the other. 

 I would read from the Code of Virginia, 

Section 54.1-3700, which would say a clinical 

social worker means a social worker who, by 

education and experience, is professionally 

qualified at the autonomous practice level to 

provide direct diagnostic, preventive and 

treatment services where functioning is 

threatened or affected by social and 

psychological stress or health impairment. 

To, and, also, in this section in order to 

engage in the practice of social work it 

shall be necessary to hold the license, which 

Ms. Polidoro is, and I would respectfully 

submit this proffer.