(1) On the basis of the report filed under § 5-2-328 and after a hearing, if a hearing is requested, the court may enter judgment of acquittal on the ground of lack of criminal responsibility if the court is satisfied that the following criteria are met: The defendant currently has the capacity to understand the proceedings against him or her and to assist effectively in his or her own defense; and
(2) At the time of the conduct charged, the defendant lacked criminal responsibility.
(3) If the defendant did not raise the issue of lack of criminal responsibility as an affirmative defense under § 5-2-328, then the court is required to make a factual determination that the defendant committed the offense and that he or she lacked criminal responsibility at the time of the commission of the offense.